Committee for PurchaseCommittee for Purchase From People Who Are Blind or Severely DisabledNOTICESProcurement List; Additions and Deletions, 44218-442202012-183702012-18371Copyright OfficeCopyright Office, Library of CongressPROPOSED RULESMechanical and Digital Phonorecord Delivery Compulsory License, 44179-441972012-18275CorporationCorporation for National and Community ServiceNOTICESAgency Information Collection Activities; Proposals, Submissions, and Approvals, 44220-442212012-18347Defense DepartmentDefense DepartmentSee

We are amending the regulations that govern the importation of animals and animal products by consolidating the list of factors APHIS considers when evaluating the animal health status of a foreign region and by setting out new factors APHIS will consider when evaluating a region as historically free of a specific disease. These changes will make clearer the types of information APHIS needs from a requesting region in order to conduct an evaluation.

The regulations in 9 CFR part 92, “Importation of Animals and Animal Products; Procedures for Requesting Recognition of Regions” (referred to below as the regulations), set forth the process by which a foreign government may request recognition of the animal health status of a region.

Section 92.2 of the regulations requires that such requests be accompanied by information regarding the region that will enable the Animal and Plant Health Inspection Service (APHIS) of the U.S. Department of Agriculture to evaluate the request.

On December 28, 2011, we published in the Federal Register (76 FR 81404-81408, Docket No. APHIS-2007-0158) a proposal 1 to amend the regulations by consolidating the 11 factors listed in § 92.2(b) that APHIS considers when evaluating the animal health status of a foreign region into 8 factors. We also proposed to establish criteria for recognizing a region as historically free of a specific disease. Our intent was to make clearer the types of information APHIS needs from a requesting region to conduct an evaluation. Additionally, although our regulations focus on requests from foreign regions, we noted that APHIS could initiate an evaluation of the disease status of a foreign region and, if we did, would conduct the evaluation using these same factors. We also proposed to remove a statement in § 92.2(d) that supporting information submitted with country requests will be made available to the public prior to initiation of rulemaking. We proposed to replace it with a statement that a list of regions that have requested recognition of their animal health status will be available to the public, and to leave in place a statement in § 92.2(f) that when APHIS makes its evaluation available for public comment, the public will have access to the information upon which APHIS based its evaluation, as well as the evaluation itself.

1 To view the proposed rule and the comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2007-0158.

We solicited comments concerning our proposal for 60 days ending February 27, 2012. We received 12 comments (including two from the same person) by that date. They were from an organization representing pork producers, an organization representing cattle farmers and ranchers, an organization representing U.S. consumers, a wildlife conservation society, a State board of animal health, foreign governments, and individuals.

Six commenters supported the proposed changes.

Three commenters objected to the proposed rule. Two of the three said that they oppose the concept of regionalization for animal health status. Two also said they were concerned about APHIS' ability to predict outbreaks or detect disease threats under the current 11 factors and oppose finalizing a rule predicated on those factors. They cited several instances where regions APHIS had recognized as free of a disease had subsequently experienced an outbreak of that disease. One commenter also said that APHIS should not adopt international criteria for evaluating a region as historically free of a disease until we have conducted a scientific study to determine whether such recommendations are, in fact, capable of adequately assessing whether a country is historically free of a disease.

We are making no changes to the proposed rule in response to these comments. Regionalization is an important principle of the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (WTO-SPS Agreement). Regionalization is based on recognition that pest and disease conditions may vary across a country as a result of ecological, environmental, and epidemiological factors, and on the premise that these differences should be taken into account in developing science-based regulatory measures. The United States has successfully applied the concept for decades in domestic disease control and eradication programs, and regionalization of the United States for bluetongue and other diseases has facilitated exports.

Our evaluations of regions for animal health closely consider a broad range of factors widely accepted by the international community for assessing the disease risks associated with a region. As discussed above, we provide an opportunity for the public to view and comment on our evaluations and the information upon which they are based prior to making a final determination. Finding that a region is free of a disease based on such an evaluation does not guarantee, however, that the region will always remain free of that disease. Our evaluations enable us to determine whether a disease is present in a region at a given time, ensure that the region has safeguards in place to protect against introduction of the disease, and ensure that the region is capable of detecting and containing the disease should it be introduced despite these measures.

Two commenters did not speak for or against the specific changes, but raised other issues, as follows.

One expressed concern that the reason for the changes was to expedite the evaluations for animal health status. The commenter stated that this should not be done at the expense of preventing foreign animal disease introductions into the United States.

We agree and point out that we are not changing the way we conduct evaluations. Our goal is to expedite the process of a region supplying us with the necessary information to conduct an evaluation.

One commenter expressed concern that APHIS emphasizes geographic, or zonal, freedom from disease over other approaches to trade in animal products that effectively mitigate disease risks. He mentioned compartmentalization and commodity-based trade as two alternatives. As examples of the latter, he cited the international standards for trade in fresh beef from regions that vaccinate for foot-and-mouth disease and the international standards for trade in milk and deboned beef from regions where the risk of bovine spongiform encephalopathy is neither negligible nor controlled. He stated that eradication of livestock diseases may not always be realistic or feasible, especially in places like Africa, where the means for achieving zone freedom (fences, for example) can conflict with wildlife preservation efforts (e.g., ensuring wildlife have space and freedom to roam).

We are making no changes to the proposed rule in response to this comment. While this rulemaking addresses factors we consider when assessing the disease status of a geographic area, APHIS' regulations also include commodity-based requirements that allow for the importation of a variety of products from regions not considered free of diseases of concern. These requirements are contained largely in 9 CFR part 94. Inquiries regarding these requirements or requests for approval of new requirements may be directed to the National Center for Import and Export: Telephone (301) 851-3300 or email AskNCIE.Products@aphis.usda.gov.

Additionally, several of the commenters addressed specific provisions of the proposal.

One commenter objected to the proposal to allow APHIS to initiate an evaluation of a foreign country's disease status in the absence of a request from that foreign country, stating that multinational meat packers might lobby APHIS to conduct such evaluations in order to source meat and livestock.

We are making no changes to the proposed rule in response to this comment. If there is a U.S. market for meat or livestock from a foreign region but APHIS has not yet evaluated its disease risk, the foreign government of that region will likely request an evaluation because of the value those exports would have for the foreign region. In any case, as stated in the proposed rule, APHIS anticipates that most evaluations will be done at the request of a foreign country. There may be instances, however, when it will be beneficial for APHIS to initiate an evaluation, and we reserve the right to do so. Even in such cases, we could not conduct the evaluation without the cooperation of the foreign government, which would need to supply information and allow access for any necessary site visits. As with any evaluation, there would be opportunity for the public to review and comment on the evaluation and proposed disease status.

One commenter objected to our proposal to remove the statement in § 92.2(d) that supporting information submitted with country requests will be made available to the public prior to initiation of rulemaking. The commenter stated withholding such information will severely limit APHIS' transparency. Another commenter expressed concern that this change would reduce the amount of time that supporting information regarding a country's disease status is available to the public.

We are making no change in response to these comments. The intent of this statement was to assure the public that they will have access to, and opportunity to comment on, the information upon which APHIS bases its evaluation, as well as the evaluation itself. As discussed in the proposed rule, this has been our practice, and it will continue to be our practice. Moreover, there will be no change in when we make the supporting information available. We will continue to make both the supporting information and the evaluation available when we announce our intention to recognize the animal health status of a region and open the public comment period. We were concerned that the statement we proposed to remove suggested that the supporting information might be made available sooner, perhaps at the time of the initial submission of the request, when the information may be incomplete or inadequate. Additionally, this is not the only information APHIS relies upon to make its determination. In addition to information provided by the requesting country, we also gather information from literature, reports, and site visits and consider all of this in preparing our evaluation. We believe that the public should consider all of the information together, and that it could be confusing or misleading to release it in stages.

One commenter requested that, when we make available to the public a list of regions that have requested recognition of their animal health status, we include an indication of the animal species and diseases under evaluation with respect to each region. Another commenter recommended that we encourage foreign jurisdictions to specify the type of animal or product they wish to export and that we also make that information available to the public when we have it.

We agree with the suggestions. Paragraph § 92.2(d) in this final rule provides that APHIS will list on its Web site each region that has requested APHIS recognition of its animal health status, the disease(s) under evaluation, and, if the information is available, the animal(s) or product(s) the region wishes to export.

One commenter said that while the proposed changes would facilitate the work of foreign governments in submitting information, he remains concerned about the length of time it can take to complete assessments. The commenter referenced provisions in Annex C of the WTO-SPS Agreement that recommend that Members publish the standard processing period for evaluation requests or communicate the anticipated processing period to the applicant upon request.

We are making no changes to the proposed rule in response to this comment. Because the time required for each evaluation varies, estimates must be made on a case-by-case basis, which APHIS will communicate with the applicant upon request, consistent with Annex C.

One commenter asked what we mean by the wording “safely granted” in proposed § 92.2(e), which says: “If, after review and evaluation of the information submitted in accordance with paragraph (b) or (c) of this section, APHIS believes the request can be safely granted, APHIS will indicate its intent and make its evaluation available for public comment through a document published in the Federal Register.”

We mean that APHIS has determined that imports from the region would present a low risk of introducing a particular disease into the United States and may be safely imported.

A few commenters also made suggestions or raised issues not directly related to the changes we proposed, including expanding APHIS' oversight of other animals, including rodents; data sharing among regulatory agencies; conducting post-mortem examinations of a representative sample of imported livestock to rule out “potential disease”; and the agreement between the European Commission and the United States on sanitary measures. Because these matters are outside the scope of this rulemaking, we are not addressing them here.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed above.

Executive Order 12866 and Regulatory Flexibility Act

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

The economic analysis identifies importers and producers of animals and animal products as the small entities most likely to be affected by this action and considers the reduction in time between receipt of a request by APHIS and initiation of an evaluation.

Based on the information presented in the analysis, we expect that decreasing the amount of time and APHIS resources required to conduct such an evaluation would not have a significant economic effect on the entities affected.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

Paperwork Reduction Act

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

2. In § 92.2, paragraphs (a) through (f) are revised to read as follows:§ 92.2 Application for recognition of the animal health status of a region.

(a) The representative of the national government(s) of any country or countries who has the authority to make such a request may request that APHIS recognize the animal health status of a region.1 Such requests must be made in English and must be sent to the Administrator, c/o National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231. (Where possible, include a copy of the request and accompanying information in electronic format.)

1 Additionally, APHIS may choose to initiate an evaluation of the animal health status of a foreign region on its own initiative. In such cases, APHIS will follow the same evaluation and notification procedures set forth in this section.

(b) Requests for recognition of the animal health status of a region, other than requests submitted in accordance with paragraph (c) of this section, must include, in English, the following information about the region. More detailed information regarding the specific types of information that will enable APHIS to most expeditiously conduct an evaluation of the request is available at http://www.aphis.usda.gov/import_export/animals/reg_request.shtml or by contacting the Director, Sanitary Trade Issues Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737.

(1) Scope of the evaluation being requested.

(2) Veterinary control and oversight.

(3) Disease history and vaccination practices.

(4) Livestock demographics and traceability.

(5) Epidemiological separation from potential sources of infection.

(6) Surveillance.

(7) Diagnostic laboratory capabilities.

(8) Emergency preparedness and response.

(c) Requests for recognition that a region is historically free of a disease based on the amount of time that has elapsed since the disease last occurred in a region, if it has ever occurred, must include, in English, the following information about the region. More detailed information regarding the specific types of information that will enable APHIS to most expeditiously conduct an evaluation of the request is available at http://www.aphis.usda.gov/import_export/animals/reg_request.shtml or by contacting the Director, Sanitary Trade Issues Team, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737. For a region to be considered historically free of a disease, the disease must not have been reported in domestic livestock for at least the past 25 years and must not have been reported in wildlife for at least the past 10 years.

(1) Scope of the evaluation being requested.

(2) Veterinary control and oversight.

(3) Disease history and vaccination practices

(4) Disease notification.

(5) Disease detection.

(6) Barriers to disease introduction.

(d) A list of those regions that have requested APHIS' recognition of their animal health status, the disease(s) under evaluation, and, if available, the animal(s) or product(s) the region wishes to export, is available at http://www.aphis.usda.gov/import_export/animals/reg_request.shtml.

(e) If, after review and evaluation of the information submitted in accordance with paragraph (b) or (c) of this section, APHIS believes the request can be safely granted, APHIS will indicate its intent and make its evaluation available for public comment through a document published in the Federal Register.

(f) APHIS will provide a period of time during which the public may comment on its evaluation. During the comment period, the public will have access to the information upon which APHIS based its evaluation, as well as the evaluation itself. Once APHIS has reviewed all comments received, it will make a final determination regarding the request and will publish that determination in the Federal Register.

These special conditions are issued for the Agusta S.p.A. (Agusta) Model AW139 and AB139 helicopters. These model helicopters, as modified by Agusta, will have novel or unusual design features associated with installing an optional SAR AFCS. The applicable airworthiness standards do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards the Administrator considers necessary to show a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is July 18, 2012. We must receive your comments by September 25, 2012.

ADDRESSES:

Send comments identified by docket number [FAA-2012-0785] using any of the following methods:

Privacy: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

Docket: You can read the background documents or comments received at http://www.regulations.gov. Follow the online instructions for accessing the docket or go to the Docket Operations in Room @12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m., and 5 p.m., Monday through Friday, except Federal holidays.

The substance of these special conditions has been subjected to the notice and comment period previously and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Further, a delay in the effective date of these special conditions would significantly delay issuance of the design approval and thus delivery of the helicopter, which is imminent. Therefore, the FAA has determined that prior public notice and comment are unnecessary, impracticable, and contrary to the public interest, and finds good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment.

Comments Invited

While we did not precede this with a notice of proposed special conditions, we invite interested people to take part in this action by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We will consider comments filed late if it is possible to do so without incurring additional expense or delay. We may change these special conditions based on the comments we receive.

Background and Discussion

On November 11, 2008, Agusta applied for a change to Type Certificate (TC) No. R00002RD to install an optional SAR AFCS in the Model AB139 and AW139 helicopters. The AB139 and AW139 models are transport category helicopters certificated to Category A and Category B requirements, and instrument flight certificated under the requirements of Appendix B to 14 CFR part 29, Amendment 29-40.

There is a need to use dedicated AFCS upper modes, in which a fully coupled autopilot provides operational SAR profiles, for SAR operations conducted over water in offshore areas clear of obstructions. The SAR modes enable the helicopter pilot to fly fully coupled maneuvers, to include predefined search patterns during cruise flight, and to transition from cruise flight to a stabilized hover and departure (transition from hover to cruise flight). The SAR AFCS also includes an auxiliary crew control that allows another crewmember (such as a hoist operator) to have limited authority to control the helicopter's longitudinal and lateral position during hover operations.

Flight operations conducted over water at night may have an extremely limited visual horizon with little visual reference to the surface even when conducted under Visual Meteorological Conditions. Consequently, the certification requirements for SAR modes must meet Appendix B to 14 CFR part 29 for helicopter instrument flight. While this appendix prescribes airworthiness criteria for instrument flight, it does not consider operations below instrument flight minimum speed (VMINI), whereas the SAR modes allow for coupled operations at low speed, all-azimuth flight to zero airspeed (hover).

Since SAR operations have traditionally been a public use mission, the use of SAR modes in civil operations requires special airworthiness standards (special conditions) to maintain a level of safety consistent with Category A and Instrument Flight Rule (IFR) certification. In this regard, 14 CFR part 29 lacks adequate airworthiness standards for AFCS SAR mode certification to include flight characteristics, performance, and installed equipment and systems.

Type Certification Basis

Under 14 CFR 21.101, Agusta must show the AW139 and AB139 model helicopters, as changed, continue to meet either the applicable provisions of the rules incorporated by reference in TC No. R00002RD or the applicable regulations in effect on the date of application for the change, depending on the significance of the change as defined by 14 CFR 21.101. The regulations incorporated by reference in the TC are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in R00002RD are as follows:

If the Administrator finds the applicable airworthiness standards (i.e., 14 CFR part 29) do not contain adequate or appropriate safety standards for the Agusta model AW139 and AB139 helicopters because of a novel or unusual design feature, special conditions are prescribed under 14 CFR 21.16.

The FAA issues special conditions, as defined in § 11.19, under § 11.38, and they become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the TC for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same TC be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model.

Novel or Unusual Design Features

The Agusta model AW139 and AB139 helicopters will incorporate the following novel or unusual design features:

The SAR system is composed of a navigation computer with SAR modes, an AFCS that provides coupled SAR functions, hoist operator control, a hover speed reference system, and two radio altimeters. The AFCS coupled SAR functions include:

(a) Hover hold at selected height above the surface.

(b) Ground speed hold.

(c) Transition down and hover to a waypoint under guidance from the navigation computer.

(d) SAR pattern, transition down, and hover near a target over which the helicopter has flown.

These SAR modes are intended to be used over large bodies of water in areas clear of obstructions. Further, use of the modes that transition down from cruise to hover will include operation at airspeeds below VMINI.

The SAR system only entails navigation, flight control, and coupled AFCS operation of the helicopter. The system does not include the additional equipment that may be required for over water flight or external loads to meet other operational requirements.

Applicability

These special conditions apply to the Agusta Model AW139 and AB139 helicopters. Should Agusta apply at a later date for a change to the TC to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(d).

Conclusion

This action affects only certain novel or unusual design features on two model helicopters (i.e., AW139 and AB139 helicopters). It is not a rule of general applicability.

List of Subjects in 14 CFR Part 29

Aircraft, Aviation safety.

The authority citation for these special conditions is as follows:Authority:

49 U.S.C. 106(g), 40113, 44701-44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Agusta Model AW139 and AB139 helicopters when the optional Search and Rescue (SAR) Automatic Flight Control System (AFCS) is installed:

In addition to the part 29 certification requirements for Category A and helicopter instrument flight (Appendix B), the following additional requirements must be met for certification of the SAR AFCS:

(a) SAR Flight Modes. The coupled SAR flight modes must provide:

(1) Safe and controlled flight in three axes (lateral and longitudinal position/speed and height/vertical speed) at all airspeeds from instrument flight minimum speed (VMINI) to a hover within the maximum demonstrated wind envelope.

(2) Automatic transition to the helicopter instrument flight (Appendix B) envelope as part of the normal SAR mode sequencing.

(3) A pilot-selectable Go-Around mode that safely interrupts any other coupled mode and automatically transitions the helicopter to the instrument flight (Appendix B) envelope.

(b) SAR Mode System Architecture. To support the integrity of the SAR modes, the following system architecture is required:

(1) A system for limiting the engine power demanded by the AFCS when any of the automatic piloting modes are engaged, so full authority digital engine control power limitations, such as torque and temperature, are not exceeded.

(2) A system providing the aircraft height above the surface and final pilot-selected height at a location on the instrument panel in a position acceptable to the FAA that will make it plainly visible to and usable by any pilot at their station.

(3) A system providing the aircraft heading and the pilot-selected heading at a location on the instrument panel in a position acceptable to the FAA that will make it plainly visible to and usable by any pilot at their station.

(4) A system providing the aircraft longitudinal and lateral ground speeds and the pilot-selected longitudinal and lateral ground speeds when used by the AFCS in the flight envelope where airspeed indications become unreliable. This information must be presented at a location on the instrument panel in a position acceptable to the FAA that is plainly visible to and usable by any pilot at their station.

(5) A system providing wind speed and wind direction when automatic piloting modes are engaged or transitioning from one mode to another.

(6) A system that monitors for flight guidance deviations and failures, and contains an alerting function that provides the flight crew with enough information to take appropriate corrective action.

(7) The alerting system must provide visual or aural alerts, or both, to the flight crew under any of the below conditions:

(i) When the stored or pilot-selected safe minimum height is reached.

(ii) When a SAR mode system malfunction occurs.

(iii) When the AFCS changes modes automatically from one SAR mode to another.

For normal transitions from one SAR mode to another, a single visual or aural alert may suffice. For a SAR mode malfunction or a mode having a time-critical component, the flight crew alerting system must activate early enough to allow the flight crew to take timely and appropriate action. The alerting system means must be designed to alert the flight crew in order to minimize crew errors that could create an additional hazard.

(8) The SAR system hoist operator control is considered a flight control with limited authority and must comply with the following:

(i) The hoist operator control must be designed and located to provide for convenient operation and to prevent confusion and inadvertent operation.

(ii) The helicopter must be safely controllable by the hoist operator control throughout the range of that control.

(iii) The hoist operator control may not interfere with the safe operation of the helicopter.

(iv) Pilot and copilot flight controls must be able to smoothly override the limited control authority of the hoist operator control, without exceptional piloting skill, alertness, or strength, and without the danger of exceeding any other limitation because of the override.

(9) The reliability of the AFCS must be related to the effects of its failure. The occurrence of any failure condition that would prevent continued safe flight and landing must be extremely improbable. For any failure condition of the AFCS which is not shown to be extremely improbable:

(i) The helicopter must be safely controllable and capable of continued safe flight without exceptional piloting skill, alertness, or strength. Additional unrelated probable failures affecting the control system must be evaluated.

(ii) The AFCS must be designed so that it cannot create a hazardous deviation in the flight path or produce hazardous loads on the helicopter during normal operation or in the event of a malfunction or failure, assuming corrective action begins within an appropriate period of time. Where multiple systems are installed, subsequent malfunction conditions must be evaluated in sequence unless their occurrence is shown to be improbable.

(10) A functional hazard assessment and a system safety assessment must be provided to the FAA that addresses the failure conditions associated with SAR operations.

(i) For SAR catastrophic failure conditions, changes may be required to the following:

(A) System architecture.

(B) Software and complex electronic hardware design assurance levels.

(C) High Intensity Radiated Field (HIRF) test levels.

(D) Instructions for continued airworthiness.

(ii) The assessments must consider all the systems required for SAR operations to include the AFCS, all associated AFCS sensors (for example, radio altimeter), and primary flight displays. Electrical and electronic systems with SAR catastrophic failure conditions (for example, AFCS) must comply with the § 29.1317(a)(4) HIRF requirements.

(c) SAR Mode Performance Requirements.

(1) Demonstrate the SAR modes for the requested flight envelope, including the following minimum sea-state and wind conditions:

(i) Sea State: Wave height of 2.5 meters (8.2 feet), considering both short and long swells.

(ii) Wind: 25 knots headwind; 17 knots for all other azimuths.

(2) The selected hover height and hover velocity must be captured (to include the transition from one captured mode to another captured mode) accurately and smoothly and not exhibit any significant overshoot or oscillation.

(3) The minimum use height (MUH) for the SAR modes must be no more than the maximum loss of height following any single failure or any combination of failures not shown to be extremely improbable, plus an additional 15 feet. The MUH is the minimum height at which any SAR AFCS mode may be engaged.

(4) The SAR mode system must be usable up to the maximum certified gross weight of the aircraft or to the lower of the following weights:

(i) Maximum emergency flotation weight.

(ii) Maximum hover Out-of-Ground Effect (OGE) weight.

(iii) Maximum demonstrated weight.

(d) Flight Characteristics.

(1) The basic aircraft must meet all of the part 29 airworthiness criteria for helicopter instrument flight (Appendix B).

(2) For SAR mode coupled flight below VMINI, at the maximum demonstrated winds, the helicopter must be able to maintain any required flight condition and make a smooth transition from any flight condition to any other flight condition without requiring exceptional piloting skill, alertness, or strength, and without exceeding the limit load factor. This requirement also includes aircraft control through the hoist operator's control.

(3) For SAR modes at airspeeds below VMINI, the following requirements of Appendix B to part 29 must be met and will be used as an extension to the IFR certification envelope of the basic aircraft:

(i) Static Longitudinal Stability: the requirements of paragraph IV of Appendix B are not applicable.

(ii) Static Lateral-Directional Stability: The requirements of paragraph V of Appendix B are not applicable.

(iii) Dynamic Stability: The requirements of paragraph VI of Appendix B are replaced with the following two paragraphs:

(A) Any oscillation must be damped and any aperiodic response must not double in amplitude in less than 10 seconds. This requirement must also be met with degraded upper mode(s) of the AFCS. An “upper mode” is a mode that utilizes a fully coupled autopilot to provide an operational SAR profile.

(B) After any upset, the AFCS must return the aircraft to the last commanded position within 10 seconds or less.

(4) With any of the upper mode(s) of the AFCS engaged, the pilot must be able to manually recover the aircraft and transition to the normal (Appendix B) IFR flight profile envelope without exceptional skill, alertness, or strength.

(e) One-Engine Inoperative (OEI) Performance Information.

(1) The following performance information must be provided in the Rotorcraft Flight Manual Supplement (RFMS):

(i) OEI performance information and emergency procedures, providing the maximum weight that will provide a minimum clearance of 15 feet above the surface, following failure of the critical engine in a hover. The maximum weight must be presented as a function of the hover height for the temperature and pressure altitude range requested for certification. The effects of wind must be reflected in the hover performance information.

(ii) Hover OGE performance with the critical engine inoperative for OEI continuous and time-limited power ratings for those weights, altitudes, and temperatures for which certification is requested.

Note:

These OEI performance requirements do not replace performance requirements that may be needed to comply with the airworthiness or operational standards (14 CFR 29.865 or 14 CFR part 133) for external loads or human external cargo.

(f) RFMS.

(1) The RFMS must contain, at a minimum:

(i) Limitations necessary for safe operation of the SAR system to include:

(A) Minimum crew requirements.

(B) Maximum SAR weight.

(C) Engagement criteria for each of the SAR modes to include MUH (as determined in paragraph (c)(3)).

(ii) Normal and emergency procedures for operation of the SAR system (to include operation of the hoist operator control), with AFCS failure modes, AFCS degraded modes, and engine failures.

(1) Before approval of the SAR system, an acceptable flight demonstration of all the coupled SAR modes is required.

(2) The AFCS must provide fail-safe operations during coupled maneuvers. The demonstration of fail-safe operations must include a pilot workload assessment associated with manually flying the aircraft to an altitude greater than 200 feet above the surface and an airspeed of at least the best rate of climb airspeed (Vy).

(3) For any failure condition of the SAR system not shown to be extremely improbable, the pilot must be able to make a smooth transition from one flight mode to another without exceptional piloting skill, alertness, or strength.

(4) Failure conditions that are not shown to be extremely improbable must be demonstrated by analysis, ground testing, or flight testing. For failures demonstrated in flight, the following normal pilot recovery times are acceptable:

(5) All AFCS malfunctions must include evaluation at the low-speed and high-power flight conditions typical of SAR operations. Additionally, AFCS hard-over, slow-over, and oscillatory malfunctions, particularly in yaw, require evaluation. AFCS malfunction testing must include a single or a combination of failures (e.g., erroneous data from and loss of the radio altimeter, attitude, heading, and altitude sensors) that are not shown to be extremely improbable.

(6) The flight demonstration must include the following environmental conditions:

We are adopting a new airworthiness directive (AD) for certain Gulfstream Aerospace LP (Type Certificate previously held by Israel Aircraft Industries, Ltd.) Model Gulfstream G150 airplanes. This emergency AD was sent previously to all known U.S. owners and operators of these airplanes. This AD requires a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris or obstructions, and repair if necessary. This AD was prompted by a report indicating that an inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. We are issuing this AD to detect and correct compromised integrity of the wing structure.

DATES:

This AD is effective August 13, 2012 to all persons except those persons to whom it was made immediately effective by emergency AD 2012-13-51, issued on June 26, 2012, which contained the requirements of this amendment.

The Director of the Federal Register approved the incorporation by reference of a certain publication identified in the AD as of August 13, 2012.

We must receive comments on this AD by September 10, 2012.

ADDRESSES:

You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On June 26, 2012, we issued emergency AD 2012-13-51, which requires a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris or obstructions, and repair if necessary. Emergency AD 2012-13-51 also requires reporting positive inspection findings to the manufacturer. This action was prompted by a report from the Civil Aviation Authority of Israel (CAAI), which is the airworthiness authority for Israel, indicating that an unsafe condition may exist on Gulfstream Aerospace LP Model Gulfstream G150 airplanes. The CAAI advises that fasteners protruding from the lower wing surface were discovered during a post-flight inspection. Investigation revealed structural damage to (and separation of) ribs from wing planks.

Further inspection showed that the inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. This condition was also found on some airplanes in production. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. This condition, if not detected and corrected, could compromise the integrity of the wing structure.

Relevant Service Information

Gulfstream Aerospace LP has issued Gulfstream G150 Alert Service Bulletin 150-28A-146, dated June 22, 2012. The service information describes procedures for a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris and obstructions. The service information specifies to contact the manufacturer if any debris or obstruction is found. The CAAI mandated this service bulletin and issued Emergency Airworthiness Directive 28-12-06-18, dated June 24, 2012 (referred to after this as “the MCAI”), to ensure the continued airworthiness of these airplanes in Israel.

FAA's Determination and Requirements of This AD

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Since the unsafe condition described is likely to exist or develop on other airplanes of the same type design, we issued emergency AD 2012-13-51 to detect and correct compromised integrity of the wing structure. The AD requires a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris or obstructions, and repair if necessary. The AD also requires reporting positive inspection findings to the manufacturer.

We found that immediate corrective action was required; therefore, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on June 26, 2012, to all known U.S. owners and operators of Gulfstream Aerospace LP (Type Certificate previously held by Israel Aircraft Industries, Ltd.) Model Gulfstream G150 airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective to all persons.

Interim Action

We consider this AD interim action. We may consider further rulemaking when additional information is available.

FAA's Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because we received a report indicating that an inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. We are issuing this AD to detect and correct compromised integrity of the wing structure. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2012-0675 and Directorate Identifier 2012-NM-120-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Costs of Compliance

We estimate that this AD affects 58 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated CostsActionLabor costParts costCost per productCost on U.S.

operators

InspectionUp to 18 work-hours × $85 per hour = up to $1,530$0Up to $1,530Up to $88,740.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This AD is effective August 13, 2012 to all persons except those persons to whom it was made immediately effective by emergency AD 2012-13-51, issued on June 26, 2012, which contained the requirements of this amendment.

This AD was prompted by a report indicating that an inboard vent tube hole was completely covered with sealant, which blocked airflow through the vent. Under these conditions, the rise of internal pressure during pressure fueling or due to thermal expansion is sufficient to damage the wing. We are issuing this AD to detect and correct compromised integrity of the wing structure.

(f) Compliance

Comply with this AD within the compliance times specified, unless already done.

(g) Inspection and Repair

Before further flight: Do a one-time detailed or borescope inspection of the left- and right-hand inboard vent holes for debris and obstructions, in accordance with the Accomplishment Instructions of Gulfstream G150 Alert Service Bulletin 150-28A-146, dated June 22, 2012. If any debris or obstruction is found, before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the Civil Aviation Authority of Israel (CAAI) (or its delegated agent).

(h) Reporting Requirement

(1) Submit a report of positive findings of the inspection required by paragraph (g) of this AD to Gulfstream Aerospace CMP, fax 800-944-1775 or 912-963-0265, at the applicable time specified in paragraph (h)(1)(i) or (h)(1)(ii) of this AD. The report must include the inspection date and results, a description of any finding, the airplane serial number, and the number of flight hours and landings on the airplane.

(i) If the inspection was done on or after the effective date of this AD: Submit the report within 10 days after the inspection.

(ii) If the inspection was done before the effective date of this AD: Submit the report within 10 days after the effective date of this AD.

(2) A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

(i) Alternative Methods of Compliance (AMOCs)

(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Branch, send it to the attention of the person identified in the Related Information section of this AD. Information may be emailed to: 9-ANM-116-AMOC-REQUESTS@faa.gov.

(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

(j) Special Flight Permit

Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are allowed provided the criteria in this paragraph are met. A general visual inspection must be done to detect fuel leaks, skin distortion, protruding fasteners, and loose fasteners of the left- and right-hand lower wing skins. A special flight permit is not allowed if there is any finding from the inspection. If there are no findings from the inspection, a special flight permit is allowed, provided the total wing tank fuel quantity of the airplane (i.e., total of both wing tanks) is limited to 3,500 pounds or less.

(4) You may review copies of the service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

(5) You may also review copies of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at an NARA facility, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

We are adopting a new airworthiness directive (AD) for all Eurocopter Deutschland GmbH (ECD) MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK B-1, MBB-BK 117 B-2, and MBB-BK C-1 helicopters equipped with a certain external-hoist system (hoist system). This AD requires deactivating the entire hoist system or deactivating the hoist system cable cutter function on the hoist system operator control handle (operator handle). This AD was prompted by an uncommanded activation of the hoist cable cutter function on an MBB-BK117 C-1 helicopter. The actions of this AD are intended to prevent uncommanded cutting of the hoist cable and subsequent injury to persons being lifted by the hoist.

DATES:

This AD is effective August 31, 2012.

The Director of the Federal Register approved the incorporation by reference of certain documents listed in this AD as of August 31, 2012.

You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

On April 4, 2012, at 77 FR 20321, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 to include an AD that would apply to ECD Model MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK B-1, MBB-BK 117 B-2, and MBB-BK C-1 helicopters equipped with a certain hoist system. That NPRM proposed to require deactivating the entire hoist system or deactivating the hoist system cable cutter function on the operator handle. The proposed requirements were intended to prevent uncommanded cutting of the hoist cable and subsequent injury to persons being lifted by the hoist.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD No. 2011-0126, dated July 1, 2011 (EASA AD 2011-0126), to correct an unsafe condition for the ECD Model MBB-BK 117 A-3, MBB-BK 117 A-4, MBB-BK B-1, MBB-BK 117 B-2, and MBB-BK C-1 helicopters equipped with a certain hoist system. EASA AD 2011-0126 requires deactivation of the affected external hoist system by pulling and securing the related circuit breakers, or by removing the hoist boom.

After EASA AD 2011-0126 was issued, it was discovered that pulling the circuit breaker WARN ANN II degraded the annunciator system's redundant power supply, so that pilots could not be warned of a second helicopter system failure. Prompted by these findings, EASA issued superseding EASA AD No. 2011-0131, dated July 8, 2011 (EASA AD 2011-0131), to require pulling only three circuit breakers (CABLE CUTTER, WINCH CONT, and WINCH BOOM), while circuit breaker WARN ANN II remains inserted.

EASA advises that since EASA AD 2011-0131 was issued “a corrective action has been developed to establish an adequate safety level, while a terminating action is under investigation but currently not available.” EASA subsequently issued the current EASA AD No. 2011-0148, dated August 5, 2011 (EASA AD 2011-0148), which retains the requirements of EASA AD 2011-0131 and requires modification of the helicopter wiring and operator handle, part number (P/N) 76803, a revision to the Rotorcraft Flight Manual and Supplement, and repetitive inspections of the operator handle. EASA AD 2011-0148 also requires implementing a 10-year time frame for overhaul of the operator handle.

Comments

We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

FAA's Determination

These helicopters have been approved by the aviation authority of Germany and are approved for operation in the United States. Pursuant to our bilateral agreement with Germany, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

Interim Action

We consider this AD to be an interim action. The design approval holder is currently developing a terminating action to address the unsafe condition identified in this AD. Once this terminating action is developed, approved, and available, we might consider additional rulemaking.

Differences Between This AD and the EASA AD

This AD applies to the ECD Model MBB-BK 117 A-4 model. The EASA AD makes no mention of this model. The EASA AD also applies to the MBB-BK 117 A-1 model. Eurocopter informs us that the MBB-BK 117 A-1 model no longer exists, so we did not include it in our AD. The EASA AD requires temporary revisions to the Rotorcraft Flight Manual and its supplements; this AD does not. The EASA AD requires overhaul of the operator handle every ten years; this AD does not.

Related Service Information

ECD has issued Emergency Alert Service Bulletin MBB-BK117-80-166, Revision 1, dated August 4, 2011 (ASB). The ASB specifies the deactivation of the cable cutter function on the operator handle. After the cable cutter function on the operator handle has been deactivated, the rescue winch may be used.

Costs of Compliance

We estimate that this AD will affect about 12 helicopters of U.S. registry.

We estimate the following costs to comply with this AD:

• Option 1: Pull and secure three circuit breakers. We estimate that this task will require about one half-hour to complete. At $85 per work-hour, the labor cost will total about $43. No parts will be needed, so we estimate the total cost per helicopter to be $43, or $516 for the fleet.

• Option 2: Remove the hoist boom from the helicopter. We estimate that this task will require 1.5 hours to complete at $85 per work-hour for a total labor cost of about $128. No parts will be needed, so we estimate the total cost per helicopter to be $128, or $1,536 for the fleet.

• Option 3: We estimate that modifying the hoist operator handle will require four work-hours at $85 per work-hour for a total labor cost of $340 per helicopter. Parts will cost about $92. Inspecting the hoist-operator handle for damage will take about one half-hour for a labor cost of about $43. For 12 monthly inspections per year, the annual cost will total $516. We estimate that replacing the operator handle with a new operator handle will require 0.25 work hour at $85 an hour for a labor cost of about $21 per helicopter. Parts will cost about $18,500 for a total cost of $18,521 per helicopter. Total costs per helicopter will vary, depending on whether repairs are needed.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on helicopters identified in this rulemaking action.

Regulatory Findings

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

This AD defines the unsafe condition as an uncommanded cutting of the hoist cable. This condition could result in loss of the helicopter hoist and load and subsequent injury to persons being lifted by the hoist.

(c) Effective Date

This AD becomes effective August 31, 2012.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

(1) Before the next hoist operation or within 30 days, whichever comes first, comply with either paragraph (1)(i), (1)(ii), or (1)(iii):

(i) Deactivate the hoist system by pulling the CABLE CUTTER, WINCH CONT, and WINCH BOOM circuit breakers and securing each circuit breaker with a cable tie; or

(ii) Deactivate the hoist system by removing the hoist boom from the helicopter; or

(B) Inspect the operator handle P/N 76803 and the coiled cable of the operator handle for damage in accordance with Paragraph 3.B.1.(a)(2) of the ASB. Damage is also defined as any condition that could prevent the part's ability to perform its intended function.

(1) If the operator handle or the coiled cable of the operator handle has damage, replace the operator handle with an airworthy operator handle P/N 76803, before the next hoist operation.

(2) At intervals not to exceed 30 days, repeat the inspection in Paragraph (1)(iii)(B) of the Required Actions section of this AD.

(2) Before installing an affected hoist system on any helicopter, comply with Paragraph (1) of the Required Actions section of this AD.

(3) Before installing an operator handle P/N 76803 on any helicopter, comply with Paragraph (1)(iii)(A) of the Required Actions section of this AD.

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

(4) You may review the service information at the FAA, Office of the Regional Counsel, Southwest Region, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.

(5) You may also review a copy of the service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

We are adopting a new airworthiness directive (AD) for Eurocopter France (Eurocopter) Model EC155B1 helicopters with a certain automated flight control system installed. This AD requires changing the minimum required crew for instrument flight rules (IFR) operations from one pilot to two. This AD is prompted by a report that an EC155B1 helicopter experienced significant intermittent roll oscillations while coupled to the autopilot. These actions are intended to decrease the pilot's workload while experiencing any oscillations during landing, which could result in possible loss of control of the helicopter.

Examining the AD Docket: You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800- 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

Discussion

During a flight test of a Model EC155B1 helicopter, intermittent uncommanded roll oscillations were discovered during coupled instrument landing system (ILS) and localizer (LOC) approaches. The aircraft, which was coupled to the autopilot when these oscillations occurred, was not able to provide a stabilized approach from the final approach fix through the decision altitude or the minimum descent altitude. These intermittent oscillations occur during the landing phase of a flight, at an altitude of 500 feet or less above ground level, and result in higher single-pilot workload.

After an investigation, Eurocopter determined that these oscillations were caused by software in the automated flight control system (AFCS) that does not adequately filter the electronic “noise” from the U.S. ILS and LOC signals. This behavior of the autopilot was not experienced by aircraft operating in European airspace. An additional FAA flight test of an EC155B1 with unmodified AFCS software coupled to various ILS signals confirmed the oscillations, and that they can roll the helicopter up to +/−15 degrees.

Eurocopter is developing a software modification that will update the filtering algorithms for U.S. category 1 ILS and LOC signals. Until this update is approved by the European Aviation Safety Agency and validated by the FAA, we have determined that single pilot IFR operations constitute an unsafe condition for this model helicopter.

FAA's Determination

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. We are issuing this AD because we evaluated all the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other helicopters of the same type design.

AD Requirements

This AD requires, before further flight, changing the minimum flight crew requirements for IFR operations from one pilot to two by revising the rotorcraft flight manual (RFM) Operating Limitations section.

Interim Action

We consider this AD to be an interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

Costs of Compliance

We estimate that this AD will affect six helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. Revising the RFM will require about .25 hour at an average labor rate of $85 per work-hour, for a total cost per helicopter of about $22 and a total cost to U.S operator fleet of $132.

FAA's Justification and Determination of the Effective Date

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the required corrective actions must be accomplished before further flight.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

This AD applies to Model EC155B1 helicopters with an automated flight control system part number (P/N) 416-00297-161 and software level P/N 704A47-1332-79 installed, certificated in any category.

(b) Unsafe Condition

This AD defines the unsafe condition as intermittent uncommanded roll oscillations during coupled instrument landing system and localizer approaches with the autopilot coupled, which could result in subsequent loss of control of the helicopter.

(c) Effective Date

This AD becomes effective August 13, 2012.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

Before further flight, revise the Operating Limitations section of Eurocopter EC 155B1 Flight Manual Section 2.1, by inserting a copy of this AD into the Flight Manual or by making pen and ink changes as follows. Under paragraph 5, Minimum Flight Crew/Maximum Personnel Transport Capability, beneath “Minimum flight crew,” remove the phrase “—one pilot in right-hand seat” and replace it as follows:

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

This action establishes Class E airspace at Roundup Airport, Roundup, MT, to accommodate aircraft using new Area Navigation (RNAV) Global Positioning System (GPS) standard instrument approach procedures at Roundup Airport. This improves the safety and management of Instrument Flight Rules (IFR) operations at the airport.

DATES:

Effective date, 0901 UTC, September 20, 2012. The Director of the Federal Register approves this incorporation by reference action under 1 CFR part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

On May 9, 2012, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish controlled airspace at Roundup, MT (77 FR 27148). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. The FAA received three comments, all from the National Business Aviation Association (NBAA).

The NBAA comments recommended that the FAA lower some of the adjacent Class E airspace, which is beyond the TAAs, down to 1,200 feet above the surface to accommodate orderly en route descent into the respective TAA because the NBAA feels that aircraft will not have enough airspace to access the TAAs. The airspace in question includes the following areas where Class E begins at 14,500 feet MSL: The large area to the north, the two smaller areas to the west, and the small area to the east. The NBAA is also concerned that the Minimum Instrument Flight Rules Altitude (MIA) outside the 1,200 feet above the surface would affect air traffic services into the TAAs from the north, west and east. Finally, the commenter points out that extending the Class E 1,200-foot area would provide relief to Salt Lake City Air Route Traffic Control Center (ARTCC).

The FAA believes that lowering this airspace is outside the scope of this rulemaking at this time, and would not serve the immediate purpose of establishing the airspace necessary for the safety of aircraft within the Roundup, MT, airport area.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9V dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

The Rule

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace, extending upward from 700 feet above the surface, at Roundup Airport, to accommodate IFR aircraft executing new RNAV (GPS) standard instrument approach procedures at the airport. This action is necessary for the safety and management of IFR operations.

The FAA has determined this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation because the anticipated impact is minimal. This rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act because this is a routine matter that will only affect air traffic procedures and air navigation. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 discusses the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority because it establishes additional controlled airspace at Roundup Airport, Roundup, MT.

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

PART 71—DESIGNATION OF CLASS A, B, C, D AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS1. The authority citation for 14 CFR part 71 continues to read as follows:Authority:

Issued in Seattle, Washington, on July 19, 2012.Robert Henry,Acting Manager, Operations Support Group, Western Service Center.[FR Doc. 2012-18146 Filed 7-26-12; 8:45 am]BILLING CODE 4910-13-PDEPARTMENT OF LABOROccupational Safety and Health Administration29 CFR Part 1978[Docket Number: OSHA-2008-0026]RIN 1218-AC36Procedures for the Handling of Retaliation Complaints Under the Employee Protection Provision of the Surface Transportation Assistance Act of 1982 (STAA), as AmendedAGENCY:

Occupational Safety and Health Administration, Labor.

ACTION:

Final rule.

SUMMARY:

This document provides the final text of regulations governing employee protection (or “whistleblower”) claims under the Surface Transportation Assistance Act of 1982 (STAA), as amended, implementing statutory changes to STAA enacted into law on August 3, 2007, as part of the Implementing Recommendations of the 9/11 Commission Act of 2007. On August 31, 2010, the Occupational Safety and Health Administration (OSHA) published an interim final rule (IFR) for STAA whistleblower complaints in the Federal Register and requested public comment on the IFR. This final rule implements changes to the IFR in response to comments received, where appropriate. This final rule also finalizes changes to the procedures for handling whistleblower complaints under STAA that were designed to make them more consistent with OSHA's procedures for handling retaliation complaints under Section 211 of the Energy Reorganization Act of 1974, and other whistleblower provisions. It also sets forth interpretations of STAA.

Among other provisions of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Commission Act), Public Law 110-53, 121 Stat. 266, section 1536 re-enacted the whistleblower provision in STAA, 49 U.S.C. 31105 (previously referred to as “Section 405”), with certain amendments. The regulatory revisions described herein reflect these statutory changes and also seek to clarify and improve OSHA's procedures for handling STAA whistleblower claims, as well as to set forth interpretations of STAA. To the extent possible within the bounds of applicable statutory language, these revised regulations are designed to be consistent with the procedures applied to claims under other whistleblower statutes administered by OSHA, including Section 211 of the Energy Reorganization Act of 1974 (ERA), 42 U.S.C. 5851, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR21), 49 U.S.C. 42121, and Title VIII of the Sarbanes-Oxley Act of 2002 (SOX), 18 U.S.C. 1514A. Responsibility for receiving and investigating complaints under 49 U.S.C. 31105 has been delegated by the Secretary of Labor (Secretary) to the Assistant Secretary of Labor for Occupational Safety and Health (Assistant Secretary). Secretary's Order 1-2012 (Jan. 18, 2012), 77 FR 3912 (Jan. 25, 2012). Hearings on determinations by the Assistant Secretary are conducted by the Office of Administrative Law Judges, and appeals from decisions by administrative law judges (ALJs) are decided by the Department of Labor's Administrative Review Board (ARB) (Secretary's Order 1-2010), 75 FR 3924-01 (Jan. 25, 2010).

II. Summary of Statutory Changes to STAA Whistleblower Provisions

The 9/11 Commission Act amended 49 U.S.C. 31105, and the related definitions provision at 49 U.S.C. 31101, by making the changes described below.

Expansion of Protected Activity

Before passage of the 9/11 Commission Act, STAA protected certain activities related to commercial motor vehicle safety. The 9/11 Commission Act expanded STAA's coverage to commercial motor vehicle security. In particular, 49 U.S.C. 31105(a)(1)(A) previously made it unlawful for a person to discharge, discipline, or discriminate against an employee regarding pay, terms, or privileges of employment because the employee, or another person at the employee's request, filed a complaint or began a proceeding related to a violation of a commercial motor vehicle safety regulation, standard or order, or testified or planned to testify in such a proceeding. The 9/11 Commission Act expanded this provision to include complaints and proceedings related to violations of commercial motor vehicle security regulations, standards, and orders.

Prior to the 2007 amendments, paragraph (a)(1)(B)(i) of STAA's whistleblower provision prohibited a person from discharging, disciplining, or discriminating against an employee regarding pay, terms or privileges of employment for refusing to operate a vehicle in violation of a regulation, standard, or order related to commercial motor vehicle safety or health. The statute also protected any employee who refused to operate a vehicle because he or she had a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle's unsafe condition. The recent STAA amendments expanded these protections to cover: (1) Any employee who refuses to operate a vehicle in violation of regulations, standards, or orders related to commercial motor vehicle security; and (2) any employee who refuses to operate a vehicle because he or she has a reasonable apprehension of serious injury to himself or herself or the public due to the vehicle's hazardous security condition.

Before the statutory amendments, paragraph (a)(2) of STAA's whistleblower provision provided that an employee's apprehension of serious injury was reasonable only if a reasonable person in the circumstances then confronting the employee would have concluded that the “unsafe condition” of the vehicle established a real danger of accident, injury, or serious impairment to health. Moreover, to qualify for protection under this provision the employee had to have sought from the employer, and been unable to obtain, correction of the “unsafe condition.” The August 2007 amendments replaced the term “unsafe condition” with the phrase “hazardous safety or security condition” throughout this paragraph.

The 9/11 Commission Act added a new paragraph to 49 U.S.C. 31105(a)(1)(A)(ii), making it unlawful for a person to discharge, discipline or discriminate against an employee regarding pay, terms or privileges of employment because of a perception that the employee has filed or is about to file a complaint or has begun or is about to bring a proceeding concerning a violation of a commercial motor vehicle safety or security regulation, standard, or order. Paragraph (a)(1)(C) of 49 U.S.C. 31105 is also new and makes it unlawful to discharge, discipline, or discriminate against an employee regarding pay, terms, or privileges of employment because the employee accurately reports hours on duty pursuant to 49 U.S.C. Chapter 315. The recent statutory amendments also added paragraph (a)(1)(D) to 49 U.S.C. 31105. This paragraph prohibits discharging, disciplining or discriminating against an employee regarding pay, terms or privileges of employment because the employee cooperates, or is perceived as being about to cooperate, with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board. Finally, the 9/11 Commission Act inserted paragraph (a)(1)(E) into 49 U.S.C. 31105. This provision prohibits a person from discharging, disciplining, or discriminating against an employee regarding pay, terms or privileges of employment because the employee furnishes, or is perceived as having furnished or being about to furnish, information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency about the facts concerning any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

Legal Burdens of Proof for STAA Complaints

Prior to the 9/11 Commission Act, the parties' burdens of proof in STAA actions were understood to be analogous to those developed for retaliation claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. See, e.g., Clean Harbors Envtl. Servs., Inc. v. Herman, 146 F.3d 12, 21-22 (1st Cir. 1998); Yellow Freight Sys., Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). The plaintiff's prima facie case could be carried by a sufficient showing that (1) he or she engaged in protected activity; (2) he or she suffered an adverse action; and (3) a causal connection existed between the two events. Id. The ARB also required proof that the employer was aware that the employee had engaged in the protected activity. See, e.g., Baughman v. J.P. Donmoyer, Inc., No. 05-1505, 2007 WL 3286335, at *3 (ARB Oct. 31, 2007).

Once the complainant made this showing, an inference of retaliation arose and the burden shifted to the employer to produce evidence of a legitimate, non-retaliatory reason for the adverse action. Clean Harbors, 146 F.3d at 21; Yellow Freight, 27 F.3d at 1138. If the employer met this burden of production, the inference of retaliation was rebutted and the burden shifted back to the complainant to show by a preponderance of the evidence that the legitimate reason was a pretext for unlawful retaliation. Id. Where there was evidence that the employer acted out of mixed motives, i.e., it acted for both permissible and impermissible reasons, the employer bore “the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee's protected activity.” Clean Harbors, 146 F.3d at 21-22.

The 9/11 Commission Act amended paragraph (b)(1) of 49 U.S.C. 31105 to state that STAA whistleblower complaints will be governed by the legal burdens of proof set forth in AIR21 at 49 U.S.C. 42121(b). AIR21 contains whistleblower protections for employees in the aviation industry. Under AIR21, a violation may be found only if the complainant demonstrates that protected activity was a contributing factor in the adverse action described in the complaint. 49 U.S.C. 42121(b)(2)(B)(iii). Relief is unavailable if the employer demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the protected activity. 49 U.S.C. 42121(b)(2)(B)(iv). See Vieques Air Link, Inc. v. Dep't of Labor, 437 F.3d 102, 108-09 (1st Cir. 2006) (per curiam) (burdens of proof under AIR21).

Written Notification of Complaints and Findings

Prior to the 9/11 Commission Act, STAA's whistleblower provision required the Secretary to notify persons when complaints were filed against them. The statute has now been amended at paragraph (b)(1) to clarify that this notice must be in writing. Similarly, the 9/11 Commission Act amended paragraph (b)(2)(A) of 49 U.S.C. 31105 to clarify that the Secretary's findings must be in writing.

Expansion of Remedies

Paragraph (b)(3)(A) of 49 U.S.C. 31105 previously compelled the Secretary, upon finding a violation of STAA's whistleblower provision, to order the employer to take affirmative action to abate the violation, reinstate the complainant to his or her former position with the same pay and terms and privileges of employment, and pay compensatory damages, including backpay. The 9/11 Commission Act amended paragraph (b)(3)(A)(iii) to reflect existing law on damages in STAA whistleblower cases and expressly provide for the award of interest on backpay as well as compensation for any special damages sustained as a result of the unlawful discrimination, including litigation costs, expert witness fees, and reasonable attorney fees. The 2007 amendments also added a new provision to 49 U.S.C. 31105, paragraph (b)(3)(C), authorizing punitive damage awards of up to $250,000.

De Novo Review

The August 2007 amendments added paragraph (c) to 49 U.S.C. 31105. That paragraph provides for de novo review of a STAA whistleblower claim by a United States district court in the event that the Secretary has not issued a final decision within 210 days after the filing of a complaint and the delay is not due to the complainant's bad faith. The provision provides that the court will have jurisdiction over the action without regard to the amount in controversy and that the case will be tried before a jury at the request of either party.

Preemption and Employee Rights

The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at paragraph (f) clarifying that nothing in the statute preempts or diminishes any other safeguards against discrimination provided by Federal or State law. The 2007 amendments to STAA also added a provision at paragraph (g) in 49 U.S.C. 31105 stating that nothing in STAA shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. New paragraph (g) further states that rights and remedies under 49 U.S.C. 31105 “may not be waived by any agreement, policy, form, or condition of employment.”

Miscellaneous Provisions

The 9/11 Commission Act added a new provision to 49 U.S.C. 31105 at paragraph (h) regarding the circumstances in which the Secretary of Transportation and the Secretary of Homeland Security may disclose the names of employees who have provided information about certain alleged violations. In addition, the amendments added a new paragraph (i) to 49 U.S.C. 31105, which provides that the Secretary of Homeland Security will establish a process by which any person may report motor carrier vehicle security problems, deficiencies or vulnerabilities. Neither of these amendments significantly impacts OSHA's handling of whistleblower complaints under STAA.

Definition of “Employee”

Definitions applicable to STAA are found at 49 U.S.C. 31101. That section defines “employee” as a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who (i) directly affects commercial motor vehicle safety in the course of employment by a commercial motor carrier; and (ii) is not an employee of the Federal, State or local government acting in the course of employment. The 9/11 Commission Act incorporated this definition into the whistleblower section of STAA, 49 U.S.C. 31105, at paragraph (j), and expanded it to include employees who directly affect commercial motor vehicle security in the course of employment by a commercial motor carrier.

III. Summary of Rulemaking Proceedings

On August 31, 2010, OSHA published in the Federal Register an IFR implementing statutory changes to STAA enacted into law on August 3, 2007, as part of the 9/11 Commission Act, Public Law 110-53, 121 Stat. 266, as well as making other improvements to Part 1978. 75 FR 53544 (Aug. 31, 2010). In addition to promulgating the IFR, OSHA's notice included a request for public comment on the interim rules by November 1, 2010. There were no objections to most of the IFR and thus OSHA has adopted the IFR, except as noted.

In response to the IFR, three organizations—the Government Accountability Project (GAP), the National Whistleblower Center (NWC), and the Transportation Trades Department, AFL-CIO (TTD), filed comments with the agency within the public comment period. OSHA has reviewed and considered these comments and now adopts this final rule, which has been revised in part to address problems perceived by the agency and the commenters.

General Comments

NWC made several comments addressing particular provisions of the rule. These comments have been addressed, and changes to the regulatory provisions have been explained in the Summary and Discussion of Regulatory Provisions (below), where applicable. GAP commented that “these rules reasonably interpret statutory requirements and in some instances [will] significantly improve [OSHA] procedures to investigate whistleblower complaints.” GAP specifically expressed support for the following provisions: .103(b), .103(d), .104(c), .104(d), and certain aspects of .104(f). Finally, TTD expressed its support for the interim final rules in general, commenting that the “rules implement improved procedures for handling whistleblower complaints under [STAA].” TTD believes that the changes “provide important protections for transportation workers,” and TTD applauded OSHA for moving forward with the rulemaking. TTD's comments went on to suggest some changes and modifications to other interim final rules that were submitted on the same docket as the STAA interim final rule, namely the Procedures for the Handling of Retaliation Complaints Under the National Transit System Security Act and the Federal Railroad Safety Act. Those specific comments were not relevant to STAA and thus have not been addressed in the regulatory text.

IV. Summary and Discussion of Regulatory Provisions

The regulatory provisions in this part have been made to reflect the 9/11 Commission Act's amendments to STAA, to make other improvements to the procedures for handling STAA whistleblower cases, to interpret some provisions of STAA, and, to the extent possible within the bounds of applicable statutory language, to be consistent with regulations implementing the whistleblower provisions of the following statutes, among others, that are also administered and enforced by OSHA: the Safe Drinking Water Act, 42 U.S.C. 300j-9(i); the Federal Water Pollution Control Act, 33 U.S.C. 1367; the Toxic Substances Control Act, 15 U.S.C. 2622; the Solid Waste Disposal Act, 42 U.S.C. 6971; the Clean Air Act, 42 U.S.C. 7622; the ERA; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9610 (all regulations for these statutory provisions jointly codified at 29 CFR part 24); AIR21, codified at 29 CFR part 1979; SOX, codified at 29 CFR part 1980; the Pipeline Safety Improvement Act of 2002, 49 U.S.C. 60129, codified at 29 CFR part 1981; the National Transit Systems Security Act, 6 U.S.C. 1142, the Federal Railroad Safety Act, 49 U.S.C. 20109, codified at 29 CFR part 1982; and the Consumer Product Safety Improvement Act, 15 U.S.C. 2087, codified at 29 CFR part 1983. The section numbers of these STAA regulations correspond as closely as possible with the numbering in the regulations implementing other whistleblower statutes administered by OSHA.

These regulatory provisions use more appropriate terminology. First, cases brought under the whistleblower provisions of STAA are referred to as actions alleging “retaliation” rather than “discrimination.” This terminology, which has already been used in the regulations implementing the ERA and the other whistleblower statutes covered by 29 CFR part 24, is not intended to have substantive effect. It simply reflects the fact that claims brought under these whistleblower provisions are prototypical retaliation claims. A retaliation claim is a specific type of discrimination claim that focuses on actions taken as a result of an employee's protected activity rather than as a result of an employee's characteristics (e.g., race, gender, or religion).

Second, before the issuance of the IFR, the regulations referred to persons named in STAA whistleblower complaints as “named persons,” but in these regulations they are referred to as “respondents.” Again, this wording is not intended to have any substantive impact on the handling of STAA whistleblower cases. This wording simply reflects a preference for more conventional terminology.

Section 1978.100 Purpose and Scope

This section describes the purpose of the regulations implementing STAA's whistleblower provision and provides an overview of the procedures contained in the regulations. Paragraph (a) of this section includes an updated citation reference to the correct section of the United States Code where STAA's whistleblower provision is located and to reflect the recent statutory amendments extending coverage to activities pertaining to commercial motor vehicle security matters. Minor editorial revisions made to paragraph (b) of this section in the IFR are continued here.

The express inclusion of certain provisions in Part 1978 should not be read to suggest that similar legal principles may not be implied under other OSHA whistleblower rules. In other words, the canon of construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another) should not be applied in comparing these rules to other OSHA whistleblower rules. See United States v. Vonn, 535 U.S. 55, 65 (2002) (canon not applied when contrary to intent of drafters). For example, the express references to oral and internal complaints in these rules do not imply that oral and internal complaints are not protected under other OSHA whistleblower statutes.

Section 1978.101 Definitions

This section includes general definitions applicable to STAA's whistleblower provision. The definitions are organized in alphabetical order and minor edits made to clarify regulatory text in the IFR are adopted here.

A definition of “business days” in paragraph (c) clarifies that the term means days other than Saturdays, Sundays, and Federal holidays. This definition is consistent with 29 CFR 1903.22(c), an OSHA regulation interpreting the analogous term “working days” in section 10 of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. 659, in the same way.

The regulations in effect before the IFR defined “commercial motor carrier” as a person who satisfied the definitions of “motor carrier” and “motor private carrier” in 49 U.S.C. 10102(13) and 10102(16). The IFR replaced that definition with: “Commercial motor carrier means any person engaged in a business affecting commerce between States or between a State and a place outside thereof who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate such a vehicle.” This definition of “commercial motor carrier” reflects the Secretary's longstanding practice of giving that phrase expansive meaning, i.e., including within its reach all motor carriers in or affecting commerce. See, e.g., Arnold v. Associated Sand and Gravel Co., ALJ No. 92-STA-19, 1992 WL 752791, at *3 (Sec'y Aug. 31, 1992) (appropriate to give the term “commercial” its legal meaning; “legislative history of the STAA * * * additionally militates in favor of construing the term expansively to describe motor carriers ‘in' or ‘affecting' commerce”). In addition, this definition of “commercial motor carrier” is more consistent with the statutory definition of “employer.” See 49 U.S.C. 31101(3). The definition in the IFR has been adopted here.

The statutory definition of “commercial motor vehicle” in paragraph (e) included in the IFR has been revised in the final rule. Rather than reiterate the statutory definition, the final rule simply refers to the definition of this term as provided in the statute, 49 U.S.C. 31101(1). This change is intended to ensure that the regulation refers to the appropriate statutory definition, should it be amended in the future. The definition of “employee” reflects the statutory amendment expanding coverage to individuals whose work directly affects commercial motor vehicle security. In addition, the statutory definitions of “employer” and “State” are in this section at paragraphs (i) and (n) respectively, and a paragraph at the end of this section clarifies that any future statutory amendments will govern in lieu of the definitions contained in section 1978.101. A definition of “complaint” in paragraph (g) clarifies the scope of activities protected by STAA's whistleblower provisions. See discussion of section 1978.102 (Obligations and prohibited acts) below.

The definition of “complainant” in paragraph (f) in the IFR has been changed slightly. The word “whistleblower” has been deleted because it is unnecessary.

A sentence has been added to the definition of “employee” in section 1978.101(h) to include former employees and applicants. Such language is included in the definition of “employee” in other OSHA whistleblower rules, such as those under the National Transit Systems Security Act and the Federal Railroad Safety Act (29 CFR 1982.101(d)), SOX (29 CFR 1980.101(g)), and the OSH Act (29 CFR 1977.5(b)). This interpretation is consistent with the Supreme Court's interpretation of the term “employee” in 42 U.S. C. 2000e-3a, the anti-retaliation provision of Title VII of the Civil Rights Act of 1964, to include former employees. Robinson v. Shell Oil Co., 519 U.S. 337 (1997). Among the Court's reasons for this interpretation were the lack of temporal modifiers for the term “employee”; the reinstatement remedy, which only applies to former employees; and the remedial purpose of preventing workers from being deterred from whistleblowing because of a fear of blacklisting. These reasons apply equally to the anti-retaliation provision of STAA and the other whistleblower provisions enforced by OSHA.

The definition of “person” in paragraph (k) is basically the same as the one in the IFR except for the addition of “organized” before the word “group.” The definition reflects the statutory definition of “person” for the STAA whistleblower provision in 49 App. U.S.C. 2301(4) that existed before the 1994 codification of Title 49 of the United States Code, dealing with transportation. See Public Law 103-272, 108 Stat. 984. The provision at 49 App. U.S.C. 2301(4) stated: “ ‘person' means one or more individuals, partnerships, associations, corporations, business trusts, or any other organized group of individuals.” The definition of “person” was deleted from the codification because it was regarded as unnecessary due to the Dictionary Act's definition of “person” in 1 U.S.C. 1, which states that the term “includes” entities, such as individuals and corporations, which for the most part are the same as the entities listed in the definition in this rule. See note after 49 U.S.C. 31101. Changes in codifications are not intended to make substantive changes in a statute unless the congressional intent to do so is clear. Muniz v. Hoffman, 422 U.S. 454, 472 n.11 (1975); Carbo v. United States, 364 U.S. 611, 618-19 (1961). The congressional intent to rely on the definition of “person” in 1 U.S.C. 1 does not indicate an intent to change the definition. Practically all of the entities listed in 49 App. U.S.C. 2314 are the same as the ones specifically listed in 1 U.S.C. 1. Some of the entities are different, but the Dictionary Act definition, using the word “includes,” is not an exclusive list. Federal Land Bank v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“* * * term ‘including' is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.”). Furthermore, because the term “person” includes an individual and it is a “person” who is prohibited from engaging in the retaliation described in 49 U.S.C. 31105, a corporate officer or other individual responsible for the retaliation is individually liable under the STAA whistleblower provision. Smith v. Lake City Enterprises, Inc., Crystle Morgan, and Donald Morgan, Nos. 09-033, 08-091, 2010 WL 3910346, at *6 (ARB Sept. 24, 2010) (corporate president and sole shareholder individually liable under STAA), citing Wilson v. Bolin Assocs., Inc., ALJ No. 1991-STA-004 (Sec'y Dec. 30, 1991). Section 1978.102 has been corrected to reflect the fact that the statute imposes obligations on “person[s].”

Section 1978.102 Obligations and Prohibited Acts

This section describes the activities that are protected under STAA and the conduct that is prohibited in response to any protected activities. Insertion of this section in the IFR resulted in the renumbering of many subsequent sections; that renumbering is continued in the final rule. The discussion below highlights some significant interpretations of STAA in these provisions, but it is by no means exhaustive.

Among other prohibited acts, it is unlawful under STAA for a person to retaliate against an employee because the employee, or someone acting pursuant to the employee's request, has filed a complaint related to a violation of a commercial motor vehicle safety or security regulation, standard or order. 49 U.S.C. 31105(a)(1)(A)(i). STAA's whistleblower provision also prohibits a person from retaliating against an employee because the person perceives that the employee has filed or was about to file such a complaint. 49 U.S.C. 31105(a)(1)(A)(ii).

The Secretary has long taken the position that these provisions of STAA, as well as similarly worded provisions in other whistleblower statutes enforced by OSHA, cover both written and oral complaints to the employer or a government agency. The U.S. Supreme Court held that an analogous whistleblower provision in the Fair Labor Standards Act (FLSA), 29 U.S.C. 215(a)(3), protects oral as well as written complaints. Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1329 (2011). Among other things, the FLSA forbids employers from discriminating against any employee “because such employee has filed any complaint.” Although the Court examined “filed any complaint” in the FLSA, the decision is applicable to analogous language in STAA, as well as in other OSHA whistleblower statutes. See Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427, 427-28 (1973) (statutes in pari materia should be construed similarly). Specifically, Congress's intent in passing the whistleblower provision of STAA was to encourage employee reporting of noncompliance with safety regulations. Brock v. Roadway Exp., Inc., 481 U.S. 252, 258 (1987). As with the FLSA, those employees who are in the best position to report complaints under this provision may find it difficult or impractical to reduce a complaint to writing. It is particularly important for STAA to cover oral as well as written complaints because in many cases truck drivers are out on the road and the only way they can communicate immediate concerns about violations of safety and security regulations is via CB radio or phone. Requiring that complaints of safety concerns and violations be in writing would undermine the basic purpose of the statute. Furthermore, since the passage of the STAA whistleblower provision, the ARB and federal courts have consistently held that protected activity under STAA includes oral, informal, and unofficial complaints about violations of commercial motor vehicle regulations. See, e.g., Harrison v. Roadway Express, Inc., No. 00-048, 2002 WL 31932546, at *4 (ARB Dec. 31, 2002) (“[C]omplaints about violations of commercial motor vehicle regulations may be oral, informal or unofficial.”), aff'd on other grounds, 390 F.3d 752 (2d Cir. 2004); see also, e.g., Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir. 2009) (citing Yellow Freight Sys., Inc. v. Reich, 8 F.3d 980, 986 (4th Cir. 1993)) for the proposition that “written or oral” complaints can be protected under STAA). Cf. Power City Elec., Inc., No. C-77-197, 1979 WL 23049, at *2 (E.D. Wash. Oct. 23, 1979) (noting that the term “filed”, as used in Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), “is not limited to a written form of complaint.”). As the Court noted in Kasten, long-standing interpretations suggest that such views are “reasonable” and “consistent with the Act.” Kasten, 131 S.Ct. at 1335. For these reasons, sections 1978.102(b)(1) and 1978.102(e)(1) cover the filing of written and oral complaints with employers or government agencies, and the definition of the term “complaint,” reflecting this intent, in the IFR in section 1978.101 is reiterated here. Similarly, the words “orally or in writing” have been added after the words “filed” and “file” in sections 1978.102(b)(1) and .102(e)(2) to clarify that the protected activity includes oral as well as written communication.

Sections 1978.102(b)(1) and 1978.102(e)(2) clarify the long-standing position of the Secretary, supported by the courts of appeals, that under STAA and other OSHA whistleblower statutes the filing of a complaint is protected, whether the complaint is filed with an employer, a government agency, or others. Similarly, the definition of “complaint” in section 1978.101(g) states that the term includes complaints to employers, government agencies, and others. See 29 CFR 1977.9(c) (section 11(c) of the OSH Act protects complaints to an employer); McKoy v. North Fork Services Joint Venture, No. 04-176, 2007 WL 1266925, at *3 (ARB Apr. 30, 2007) (complaining to employer about violations of environmental statutes is protected activity). STAA does not specify the entities to whom a complaint may be filed in order to be protected. The preamble to the interim final rule noted: “The Secretary has long taken the position that these provisions of STAA, as well as similarly worded provisions in other whistleblower statutes enforced by OSHA, cover both written and oral complaints to the employer or a government agency.” 75 FR 53544, 53547 (Aug. 31, 2010) (emphasis added). In particular, the Secretary has ruled that complaints to an employer are protected under STAA in order to promote the statute's goal of highway safety. Israel v. Branrich, Inc., No. 09-069, 2011 WL 5023051, at *4 (ARB Sept. 29. 2011); Davis v. H.R. Hill, Inc., ALJ No.1986-STA-018 (Sec'y Mar. 19, 1987). This interpretation has been adopted by courts of appeals. Calhoun v. Dep't of Labor, 576 F.3d 201, 212 (4th Cir. 2009); Clean Harbors Envt'l Services, Inc. v. Herman, 146 F.3d 12, 19-21 (1st Cir. 1998). Cf. Minor v. Bostwick Laboratories, Inc., 669 F.3d 428 (4th Cir. 2012) (analogous anti-retaliation provision of Fair Labor Standards Act protects complaints to an employer).

In describing the conduct that is prohibited under STAA, the final rule adds the words “harass, suspend, demote” to paragraphs (b), (c), and (e) to make this rule more consistent with other OSHA whistleblower rules.

Section 1978.103 Filing of Retaliation Complaints

This section (formerly section 1978.102) was revised in the IFR to make it more consistent with the regulatory procedures for other OSHA-administered whistleblower laws; that revision is adopted here with minor editorial corrections.

Complaints filed under STAA's whistleblower provision need not be in any particular form. Complainants have always been permitted to file STAA whistleblower complaints either orally or in writing. In light of this longstanding practice, OSHA will continue to accept STAA whistleblower complaints in either oral or written form. Allowing STAA whistleblower complaints to be filed orally is also consistent with OSHA's practice under other OSHA whistleblower laws. Language has been added to paragraph (b) to clarify that when a complaint is made orally, OSHA will reduce the complaint to writing. In addition, paragraph (b) provides that if an employee is not able to file a complaint in English, OSHA will accept the complaint in any other language.

Language in paragraph (c) of the IFR providing that the complaint should be filed with the “* * * OSHA Area Director responsible for enforcement activities in the geographical area where the employee resides or was employed * * *” has been changed. “Area Director” has been changed to “office” in recognition of the possibility that organizational changes may take place.

Language in paragraph (d) clarifies the date on which a complaint will be considered “filed,” i.e., the date of postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office. To be timely, a complaint must be filed within 180 days of the occurrence of the alleged violation. Under Delaware State College v. Ricks, 449 U.S. 250, 258 (1980), this is considered to be when the retaliatory decision has been both made and communicated to the complainant. In other words, the limitations period commences once the employee is aware or reasonably should be aware of the employer's decision. Equal Emp't Opportunity Comm'n v. United Parcel Serv., Inc., 249 F.3d 557, 561-62 (6th Cir. 2001).

Provisions dealing with tolling of the 180-day period for the filing of STAA whistleblower complaints were deleted in the IFR for consistency with other OSHA whistleblower regulations, which do not contain this language; the final rule makes no changes in this regard. This revision is not intended to change the way OSHA handles untimely complaints under any whistleblower laws. A sentence in the regulatory text clarifies that filing deadlines may still be tolled based on principles developed in applicable case law. See, e.g., Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1423-29 (10th Cir. 1984).

Finally, paragraph (e), “Relationship to Section 11(c) complaints,” conforms to similar provisions implementing other OSHA whistleblower programs and more clearly describes the relationship between Section 11(c) complaints and STAA whistleblower complaints. Section 11(c) of the OSH Act generally prohibits employers from retaliating against employees for filing safety or health complaints or otherwise initiating or participating in proceedings under the OSH Act. In some circumstances an employee covered by STAA may engage in activities that are protected under STAA and Section 11(c) of the OSH Act. For example, a freight handler loading cargo onto a commercial motor vehicle may complain about both the overloading of that vehicle (a safety complaint protected by STAA) and also about an unsafe forklift (a safety complaint covered by the OSH Act). In practice, OSHA would investigate whether either or both of these protected activities caused the firing. Paragraph (e) now clarifies that STAA whistleblower complaints that also allege facts constituting an 11(c) violation will be deemed to have been filed under both statutes. Similarly, Section 11(c) complaints that allege facts constituting a violation of STAA's whistleblower provision will also be deemed to have been filed under both laws. In these cases, normal procedures and timeliness requirements under the respective statutes and regulations will be followed.

OSHA notes that a complaint of retaliation filed with OSHA under STAA is not a formal document and need not conform to the pleading standards for complaints filed in federal district court articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Sylvester v. Parexel Int'l, Inc., ARB Case No. 07-123, 2011 WL 2165854, at *9-10 (ARB May 26, 2011) (holding whistleblower complaints filed with OSHA under analogous provisions in the Sarbanes-Oxley Act need not conform to federal court pleading standards). Rather, the complaint filed with OSHA under this section simply alerts the agency to the existence of the alleged retaliation and the complainant's desire that the agency investigate the complaint. Upon the filing of a complaint with OSHA, the Assistant Secretary is to determine whether “the complaint, supplemented as appropriate by interviews of the complainant” alleges “the existence of facts and evidence to make a prima facie showing.” 29 CFR 1978.104(e). As explained in section 1978.104(e), if the complaint, supplemented as appropriate, contains a prima facie allegation, and the respondent does not show clear and convincing evidence that it would have taken the same action in the absence of the alleged protected activity, OSHA conducts an investigation to determine whether there is reasonable cause to believe that retaliation has occurred. See 49 U.S.C. 42121(b)(2), 29 CFR 1978.104(e).

Section 1978.104 Investigation

This section (formerly section 1978.103) more closely conforms to the regulations implementing other whistleblower provisions administered by OSHA. Former paragraph (f) in section 1978.102, which deals with the notice sent to employers when complaints are filed against them, is in paragraph (a) in section 1978.104, where it more appropriately appears under the “Investigation” heading. In addition, OSHA here adopts minor revisions made to that paragraph in the IFR to be more consistent with similar provisions in other OSHA whistleblower regulations. Of particular note, OSHA adopts language in the IFR which was added requiring OSHA to send the Federal Motor Carrier Safety Administration (FMCSA) a copy of the notice that goes to the employer. This has been standard practice in any event. Minor editorial changes to the language of the IFR have been made.

Former section 1978.103(a), which simply stated that OSHA would investigate and gather data as it deemed appropriate, was deleted in the IFR as unnecessary; that deletion remains. The language in paragraph (a) of the IFR relating to the provision of information to respondent's counsel has been deleted because when the respondent is first notified about the complaint the respondent is usually not represented by counsel. Paragraph (b) conforms to other OSHA whistleblower regulations. Language describing the persons who can be present and the issues that can be addressed at OSHA's meetings with respondents was deleted in the IFR and is not present in the final rule, but this deletion is not substantive.

Paragraph (c) specifies that throughout the investigation the agency will provide to the complainant (or the complainant's legal counsel, if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The phrase “if necessary” has been added because not all of respondent's submissions will contain confidential information. Paragraph (d) addresses confidentiality in investigations. Minor editorial changes have been made.

Paragraph (e) reflects the incorporation of the AIR21 burdens of proof provision by the second sentence of 49 U.S.C. 31105(b)(1), which was added by the 9/11 Commission Act. This paragraph generally conforms to similar provisions in the regulations implementing the AIR21 and ERA whistleblower laws. All of these statutes now require that a complainant make an initial prima facie showing that protected activity was “a contributing factor” in the adverse action alleged in the complaint, i.e., that the protected activity, alone or in combination with other factors, affected in some way the outcome of the employer's decision. Ferguson v. New Prime, Inc., No. 10-75, 2011 WL 4343278, at *3 (ARB Aug. 31, 2011); Clarke v. Navajo Express, No. 09-114, 2011 WL 2614326, at *3 (ARB June 29, 2011). The complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing. Complainant's burden may be satisfied, for example, if he or she shows that the adverse action took place shortly after protected activity, giving rise to the inference that it was a contributing factor in the adverse action. Language from some of OSHA's other whistleblower regulations, including those implementing AIR21 and ERA, setting forth specific elements of the complainant's prima facie case, has been carried over into these regulations.

The revised STAA provision specifically bans retaliation against employees because of their perceived protected activity. This provision clarifies existing whistleblower law. See Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (“Construing § 11(c), the OSH Act's anti-retaliation provision, to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with * * * the specific purposes of the anti-retaliation provisions.”). However, the references in this section to perceived protected activity have been deleted here because the concept is covered by the language of paragraph (e)(2)(ii) on suspected protected activity. Also, the final rule adds language clarifying that the revised STAA provision protects not only actual protected activity but also activity about to be undertaken.

If the complainant does not make the required prima facie showing, the investigation must be discontinued and the complaint dismissed. See Trimmer v. U.S. Dep't of Labor, 174 F.3d 1098, 1101 (10th Cir. 1999) (noting that the burden-shifting framework of the ERA, which is the same framework now found in the AIR21 law and STAA, served a “gatekeeping function” that “stemm[ed] frivolous complaints”). Even in cases where the complainant successfully makes a prima facie showing, the investigation must be discontinued if the employer demonstrates, by clear and convincing evidence, that it would have taken the same adverse action in the absence of the protected activity. Cf. Ferguson, supra (analogous burden shift in litigation); Clarke, supra (same). Thus, OSHA must dismiss a complaint under STAA and not investigate (or cease investigating) if either: (1) The complainant fails to meet the prima facie showing that protected activity or the perception of protected activity was a contributing factor in the adverse action; or (2) the employer rebuts that showing by clear and convincing evidence that it would have taken the same adverse action absent the protected activity or the perception thereof. The final rule makes other minor editorial corrections.

Former section 1978.103(c) was moved to paragraph (f) of this section in the IFR; that change remains. In the IFR minor revisions were made to this paragraph to conform to similar paragraphs in the regulations implementing the AIR21 and SOX whistleblower provisions; those changes remain. The provision allows 10 business days (rather than 5 days) for the respondent to present evidence in support of its position against an order of preliminary reinstatement. Paragraph (f) of this section has been revised to provide complainants with copies of the same materials provided to respondents under this paragraph, except to the extent that confidentiality laws require redaction.

NWC and GAP commented on the provisions in section 1978.104. NWC noted that to conduct a full and fair investigation, OSHA needs to obtain the available, responsive information from both parties. If one party does not have the information submitted by the other, NWC explained, that party cannot help the investigation by providing available information to shed light on the matter. NWC also suggested that the phrase “other applicable confidentiality laws” be replaced with more specific language describing the confidentiality laws that might apply to a respondent's answer.

GAP commented that while it was pleased with the provisions in section 1978.104 providing copies of respondent's submissions to complainants and protecting witness confidentiality, it was concerned that the procedures under section 1978.104(f) “disenfranchise[d] the victim, giving only one side of the dispute the chance to participate in the most significant step of the process” and that “[a]t a minimum, this procedural favoritism means there will not be an even playing field in the administrative hearing.” GAP advocated removing section 1978.104(f).

OSHA agrees with NWC and GAP that the input of both parties in the investigation is important to ensuring that OSHA reaches the proper outcome during its investigation. To that end, in response to the comments, the procedures under STAA have been revised to contain the following safeguards aimed at ensuring that complainants and respondents have equal access to information during the course of the OSHA investigation:

• Section 1978.104(c) provides that, throughout the investigation, the agency will provide the complainant (or the complainant's legal counsel if the complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint, with confidential information redacted as necessary, and the complainant will have an opportunity to respond to such submissions; and

• Section 1978.104(f) provides that the complainant will receive a copy of the materials that must be provided to the respondent under that paragraph, with confidential information redacted as necessary.

Regarding NWC's suggestion that OSHA provide more specific information about the confidentiality laws that may protect portions of the information submitted by a respondent, OSHA anticipates that the vast majority of respondent submissions will not be subject to any confidentiality laws. However, in addition to the Privacy Act, a variety of confidentiality provisions may protect information submitted during the course of an investigation. For example, a respondent may submit confidential business information, the disclosure of which would violate the Trade Secrets Act, 18 U.S.C. 1905. While the agency recognizes that a respondent must meet a high standard to show that the information it submits is protected and that it has a responsibility to independently evaluate claims that submissions contain confidential business information not subject to disclosure, it believes that the provision as drafted appropriately allows it to address legitimate claims of confidentiality.

With regard to GAP's comment that section 1978.104(f) should be removed, OSHA notes the purpose of 1978.104(f) is to ensure compliance with the Due Process Clause of the Fifth Amendment, as interpreted in the Supreme Court's ruling in Brock v. Roadway Express, Inc., 481 U.S. 252, 264 (1987), requiring OSHA to give the respondent the opportunity to review the substance of the evidence and respond, prior to ordering preliminary reinstatement.

Nonetheless, while recognizing that the purpose of section 1978.104(f) is to ensure that the respondents have been afforded due process prior to OSHA ordering preliminary reinstatement, OSHA appreciates that complainants wish to stay informed regarding their cases and may continue to have valuable input, even at this late stage in the investigation. Thus, under these rules, OSHA will provide complainants with a copy of the materials sent to the respondent under section 1978.104(f), with materials redacted in accordance with confidentiality laws.

Section 1978.105 Issuance of Findings and Preliminary Orders

Paragraph (a) in section 1978.104, as it existed before the IFR, now at paragraph (a) in this section, was updated in the IFR to reflect the recent amendments to STAA expanding available remedies; the final rule adopts those revisions. Minor editorial corrections have been made in the final rule. If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, he or she will order appropriate relief. Such order will include, where appropriate: a requirement that the respondent take affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions and privileges of the complainant's employment; payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant has incurred); and payment of punitive damages up to $250,000. The final rule adds the words “take affirmative action” in connection with abatement of the violation because the statute uses this important term of labor law, found in the National Labor Relations Act at 29 U.S.C. 160(c) and Title VII of the Civil Rights Act of 1964, as amended, at 42 U.S.C. 2000e-5(g)(1). The word “same” has been inserted before “compensation” because this language is in the statute. A minor wording change, the deletion of the word “together”, has been made in the final rule. The discussion of punitive damages has been put in a separate sentence to track the statute.

In appropriate circumstances, in lieu of preliminary reinstatement, OSHA may order that the complainant receive the same pay and benefits that he or she received prior to his or her termination, but not actually return to work. Smith, supra, at *8 (front pay under STAA). Such front pay or economic reinstatement is also employed in cases arising under Section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 815(c)(2). See, e.g., Secretary of Labor ex rel. York v. BR&D Enters., Inc., 23 FMSHRC 697, 2001 WL 1806020, at *1 (ALJ June 26, 2001). Congress intended that complainants be preliminarily reinstated to their positions if OSHA finds reasonable cause that they were discharged in violation of STAA's whistleblower provision. When a violation is found, the norm is for OSHA to order immediate, preliminary reinstatement. Neither an employer nor an employee has a statutory right to choose economic reinstatement. Rather, economic reinstatement is designed to accommodate situations in which evidence establishes to OSHA's satisfaction that reinstatement is inadvisable for some reason, notwithstanding the employer's retaliatory discharge of the complainant. In such situations, actual reinstatement might be delayed until after the administrative adjudication is completed as long as the complainant continues to receive his or her pay and benefits and is not otherwise disadvantaged by a delay in reinstatement. There is no statutory basis for allowing the employer to recover the costs of economically reinstating a complainant should the employer ultimately prevail in the whistleblower litigation.

In ordering interest on backpay, the agency has determined that, instead of computing the interest due by compounding quarterly the Internal Revenue Service interest rate for the underpayment of taxes, which under 26 U.S.C. 6621 is generally the Federal short-term rate plus three percentage points, interest will be compounded daily. The Secretary believes that daily compounding of interest better achieves the make-whole purpose of a backpay award. Daily compounding of interest has become the norm in private lending and recently was found to be the most appropriate method of calculating interest on backpay by the National Labor Relations Board. See Jackson Hosp. Corp. v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, 356 NLRB No. 8, 2010 WL 4318371, at *3-4 (2010). Additionally, interest on tax underpayments under the Internal Revenue Code, 26 U.S.C. 6621, is compounded daily pursuant to 26 U.S.C. 6622(a).

Paragraph (a)(2) of this section requires the Assistant Secretary to notify the parties if he or she finds that a violation has not occurred. Former section 1978.104(c), which provided for the suspension of 11(c) complaints pending the outcome of STAA proceedings, was deleted in the IFR; the final rule adopts that revision. As described above, section 1978.103(e) adequately describes the relationship between STAA and 11(c) complaints.

Paragraph (b) clarifies that OSHA need not send the original complaint to the Chief Administrative Law Judge when it issues its findings and preliminary order; a copy of the complaint will suffice. Former section 1978.105(b)(1) was moved to section 1978.105(c) in the IFR; the final rule adopts that revision. This paragraph states that the Assistant Secretary's preliminary order will be effective 30 days after receipt, or on the compliance date set forth in the preliminary order, whichever is later, unless an objection is filed. It also clarifies that any preliminary order requiring reinstatement will be effective immediately. This paragraph mirrors existing provisions in other OSHA whistleblower regulations. Minor editorial changes have been made in the final rule.

Subpart B—Litigation Section 1978.106 Objections to the Findings and the Preliminary Order and Request for a Hearing

Minor revisions were made to paragraph (a), formerly section 1978.105(a), in the IFR to conform to other OSHA whistleblower regulations; the final rule adopts those revisions. Other minor revisions have been made in the final rule. The paragraph clarifies that with respect to objections to the findings and preliminary order, the date of the postmark, fax, or electronic communication transmittal is considered the date of the filing; if the objection is filed in person, by hand-delivery, or other means, the objection is filed upon receipt. The filing of objections is also considered a request for a hearing before an ALJ. The amended language also clarifies that in addition to filing objections with the Chief Administrative Law Judge, the parties must serve a copy of their objections on the other parties of record and the OSHA official who issued the findings and order. The requirement in the IFR that objections be served on the Assistant Secretary and the Associate Solicitor for Occupational Safety and Health has been deleted because such service is unnecessary. A failure to serve copies of the objections on the appropriate parties does not affect the ALJ's jurisdiction to hear and decide the merits of the case. See Shirani v. Calvert Cliffs Nuclear Power Plant, Inc., No. 04-101, 2005 WL 2865915, at *7 (ARB Oct. 31, 2005).

The title to former section 1978.105(b) was deleted in the IFR because it was unnecessary; the final rule adopts that revision. In addition, as previously mentioned, former paragraph (b)(1) in section 1978.105 was moved to new paragraph (c) in section 1978.105; the final rule adopts that revision. Finally, some minor, non-substantive revisions were made in the IFR to former 1978.105(b)(2), now at 1978.106(b), and additional language was added to that paragraph to clarify that all provisions of the ALJ's order, with the exception of any order for preliminary reinstatement, will be stayed upon the filing of a timely objection; the final rule adopts those revisions. A respondent may file a motion to stay OSHA's preliminary reinstatement order with the Office of Administrative Law Judges. However, such a motion will be granted only on the basis of exceptional circumstances. A stay of the Assistant Secretary's preliminary order of reinstatement would be appropriate only where the respondent can establish the necessary criteria for a stay, i.e. the respondent would suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

Section 1978.107 Hearings

Former section 1978.106, which became section 1978.107 in the IFR, was titled “Scope of rules; applicability of other rules; notice of hearing.” The title was changed to “Hearings,” the title assigned to similar sections in other OSHA whistleblower regulations. The final rule adopts those revisions. Other minor revisions have been made in the final rule.

Minor revisions were made to paragraph (a) in the IFR, which adopted the rules of practice and procedure and the rules of evidence for administrative hearings before the Office of Administrative Law Judges, codified at 29 CFR part 18; those revisions have been adopted here. However, in the final rule the reference to the ALJ rules of evidence has been deleted. This change is discussed below. Changes were also made in the IFR to paragraph (b) to conform to other OSHA whistleblower regulations. The requirements for the ALJ to set a hearing date within 7 days and to commence a hearing within 30 days were deleted, and language was added in the IFR to clarify that hearings will commence expeditiously and be conducted de novo and on the record. The language in the IFR is not intended to change case-handling practices. The final rule adopts those revisions.

Paragraph (b) has been modified in the final rule to add language providing that ALJs have broad discretion to limit discovery in order to expedite the hearing. This provision furthers an important goal of STAA—to have unlawfully terminated employees reinstated as quickly as possible.

Paragraph (c), which deals with situations in which both the complainant and the respondent object to the findings and/or preliminary order, was revised in the IFR, consistent with the changes made to paragraph (b), to remove language stating that hearings shall commence within 30 days of the last objection received. The final rule adopts those revisions.

Former paragraph (d), dealing with the ALJ's discretion to order the filing of prehearing statements, was deleted in the IFR as unnecessary; the final rule adopts that change.

A new paragraph (d) has been added to this section. It provides that in ALJ proceedings formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. Furthermore, the ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious. This evidence provision differs from the practice under the STAA IFR (section 1978.107(a)) and the original STAA rules (section 1978. 106(a)) to follow the ALJ rules of evidence in 29 CFR part 1918. The new provision is consistent with the Administrative Procedure Act, which provides at 5 U.S.C. 556(d): “* * * Any oral or documentary evidence may be received, but the agency as a matter of policy shall provide for the exclusion of irrelevant, immaterial, or unduly repetitious evidence * * *.” See also Federal Trade Commission v. Cement Institute, 333 U.S. 683, 705-06 (1948) (administrative agencies not restricted by rigid rules of evidence). Furthermore, it is inappropriate to apply the technical rules of evidence in Part 18 because complainants often appear pro se. Also, hearsay evidence is often appropriate in whistleblower cases, as there often is no relevant evidence other than hearsay to prove discriminatory intent. ALJs have the responsibility to determine the appropriate weight to be given to such evidence. For these reasons, the interests of determining all of the relevant facts are best served by not having strict evidentiary rules.

Section 1978.108 Role of Federal Agencies

Former section 1978.107, titled “Parties,” was moved in the IFR to section 1978.108 with the new title “Role of Federal agencies.” The final rule adopts that change. This conforms to the terminology used in OSHA's other whistleblower regulations.

Former paragraphs (a), (b), and (c) in section 1978.107 were combined in section 1978.108(a)(1) in the IFR; that revision remains. The changes which were made to these paragraphs are not intended to be substantive, i.e., there is no intent to change the rights to party status currently afforded the Assistant Secretary, complainants, or respondents. The Assistant Secretary, represented by an attorney from the appropriate Regional Solicitor's Office, will still generally assume the role of prosecuting party in STAA whistleblower cases in which the respondent objects to the findings or preliminary order. This continues longstanding practice in STAA cases. The public interest generally requires the Assistant Secretary's continued participation in such matters. Relatively few private attorneys have developed adequate expertise in representing STAA whistleblower complainants, and complainants in the motor carrier industry have been more likely to proceed pro se than employees covered by OSHA's other whistleblower programs. Where the complainant, but not the respondent, objects to the findings or order, the regulations retain the Assistant Secretary's discretion to participate as a party or amicus curiae at any stage of the proceedings, including the right to petition for review of an ALJ decision.

Paragraph (a)(2) clarifies that if the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1), he or she may, upon written notice to the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party, and the ALJ will issue appropriate orders to regulate the course of future proceedings.

Paragraph (a)(3) provides that copies of documents in all cases must be sent to all parties, or, if represented by counsel, to them. If the Assistant Secretary is a party, documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary. This is a departure from the IFR, which also required distribution of documents to the Assistant Secretary and, where he or she was a party, to the Associate Solicitor for Occupational Safety and Health. Experience has shown that the additional distribution was not necessary. In the interest of saving time and resources the requirements for this additional distribution are being deleted.

Paragraph (b) states that the Federal Motor Carrier Safety Administration (FMCSA), an agency of the U.S. Department of Transportation, may participate in the proceedings as amicus curiae at its own discretion. This paragraph also permits the FMCSA to request copies of all documents, regardless of whether it is participating in the case. This provision mirrors similar language in the regulations implementing other OSHA-administered whistleblower laws.

The provisions formerly at section 1978.108, which described the manner in which STAA whistleblower cases would be captioned or titled, were deleted in the IFR. It is unnecessary to continue to include that material in these regulations.

Section 1978.109 Decisions and Orders of the Administrative Law Judge

This section sets forth the content of the decision and order of the ALJ, and includes the standards for finding a violation under STAA's whistleblower provision. Minor editorial revisions have been made in the final rule. References to the perception of protected activity have been deleted in the final rule. This concept is adequately covered by section 1978.104(e)(2)(ii) (employer knowledge shown by suspicion of protected activity). The title of this section conforms to the title assigned to similar provisions in other OSHA whistleblower regulations. Before the issuance of the IFR, section 1978.109 addressed decisions of both the ALJs and the ARB. In conformance with other OSHA whistleblower regulations, these two topics were separated by the IFR into individual sections; this separation remains in the final rule. Section 1978.109 covers only ALJ decisions and section 1978.110 addresses ARB decisions.

Former paragraph (a) was divided in the IFR among multiple paragraphs in this section and otherwise revised to reflect the parties' new burdens of proof and to conform more closely to the regulations implementing other OSHA-administered whistleblower laws. Those changes remain in the final rule. In litigation, the statutory burdens of proof require a complainant to prove that the alleged protected activity was a “contributing factor” in the alleged adverse action. If the complainant satisfies his or her burden, the employer, to escape liability, must prove by “clear and convincing evidence” that it would have taken the same action in the absence of the protected activity.

A contributing factor is “any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision.” Clarke, supra, at *3. The complainant (whenever this term is used in this paragraph, it also refers to the Assistant Secretary) can succeed by providing either direct or indirect proof of contribution. Direct evidence is “smoking gun” evidence that conclusively connects the protected activity and the adverse action and does not rely upon inference. If the complainant does not produce direct evidence, he or she must proceed indirectly, or inferentially, by proving by a preponderance of the evidence that a motive prohibited by STAA was the true reason for the adverse action. One type of circumstantial evidence is evidence that discredits the respondent's proffered reasons for the adverse action, demonstrating instead that they were pretexts for retaliation. Id. Another type of circumstantial evidence is temporal proximity between the protected activity and the adverse action. Ferguson, supra, at *2. The respondent may avoid liability if it “demonstrates by clear and convincing evidence” that it would have taken the same adverse action in any event. Clear and convincing evidence is evidence indicating that the thing to be proved is highly probable or reasonably certain. Clarke, supra, at *3. This burden of proof regimen supersedes the one in effect before the 2007 amendments to STAA. Id. at 7, n.1.

The requirements that the ALJ close the record within 30 days after the filing of the objection and issue a decision within 30 days after the close of the record are not in these rules because procedures for issuing decisions, including their timeliness, are addressed by the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges at 29 CFR 18.57.

Section 1978.109(c), which is similar to provisions in other OSHA whistleblower regulations, provides that the Assistant Secretary's determinations about when to proceed with an investigation and when to dismiss a complaint without completing an investigation are discretionary decisions not subject to review by the ALJ. The ALJ hears cases de novo and, therefore, may not remand cases to the Assistant Secretary to conduct an investigation or make further factual findings. If there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if warranted by the facts and circumstances.

Section 1978.109(d)(1) now describes the relief the ALJ can award upon finding a violation and reflects the recent statutory amendments (see earlier discussion of section 1978.105(a)). The language of the IFR has been slightly modified to clarify the available remedies. The requirement to take appropriate affirmative action to abate the violation is separated from the other remedies, as it is in the STAA remedy provision, 49 U.S.C. 31105(b)(3)(A). Affirmative action to abate the violation, required by section 31105(b)(3)(A)(i), includes a variety of measures in addition to others in (3)(A), such as posting notices about STAA orders and rights, as well as expungement of adverse comments in a personnel record. Scott v. Roadway Express, Inc., No. 01-065, 2003 WL 21269144, at *1-2 (ARB May 29, 2003) (posting notices of STAA orders and rights); Pollock v. Continental Express, Nos. 07-073, 08-051, 2010 WL 1776974, at *9 (ARB Apr. 7, 2010) (expungement of adverse references). Other minor wording changes have been made. In addition, paragraph (d)(2) in this section requires the ALJ to issue an order denying the complaint if he or she determines that the respondent has not violated STAA.

Before the IFR, ALJs' decisions and orders were subject to automatic review by the ARB. These procedures were unique to STAA whistleblower cases and resulted in a heavy STAA caseload for the ARB. This made it more difficult for the ARB to promptly resolve the cases on its docket and delayed the resolution of STAA cases in which the parties were mutually satisfied with the ALJ's decision and order. Overall, requiring mandatory ARB review of every STAA whistleblower case is an inefficient use of limited resources. In conformance with the procedures used for the other whistleblower cases investigated by OSHA and adjudicated by ALJs, these regulations provide for ARB review of an ALJ's decision only if one or more of the parties to the case files a petition requesting such review. These procedures for review of ALJ decisions apply to all ALJ decisions issued on or after the effective date of the IFR, August 31, 2010. The final rule adopts these revisions.

In the IFR, former section 1978.109(b) was deleted, although much of its content was moved to paragraph (e); the final rule adopts those revisions. Section 1978.109(e), which borrows language from similar provisions in other OSHA whistleblower regulations, gives parties 14 days after the date of the ALJ's decision to file a petition for review with the ARB. If no petition for review is filed within that timeframe, the ALJ's decision is final and all portions of the order become effective. Paragraph (e), in addition to giving parties14 days to seek review before the ARB, clarifies that any orders relating to reinstatement will be effective immediately upon receipt of the decision by the respondent.

In the IFR, all of the provisions in former section 1978.109, which codified the automatic review process, primarily former paragraphs (c)(1) and (c)(2), were deleted. The content of former paragraph (c)(3), regarding the standard for ARB review of ALJ decisions, was moved to new section 1978.110(b). The content of former paragraph (c)(4), which required the ARB to issue an order denying the complaint if it determined that the respondent had not violated the law, was moved to section 1978.110(e). Former paragraph (c)(5), which required service of the ARB decision on all parties, became a part of section 1978.110(c). The final rule adopts all those revisions.

OSHA has revised the period for filing a timely petition for review with the ARB to 14 days rather than 10 business days. With this change, the final rule expresses the time for a petition for review in a way that is consistent with the other deadlines for filings before the ALJs and the ARB in the rule, which are also expressed in days rather than business days. This change also makes the final rule congruent with the 2009 amendments to Rule 6(a) of the Federal Rules of Civil Procedure and Rule 26(a) of the Federal Rules of Appellate Procedure, which govern computation of time before those tribunals and express filing deadlines as days rather than business days. Accordingly, the ALJ's order will become the final order of the Secretary 14 days after the date of the decision, rather than after 10 business days, unless a timely petition for review is filed. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

Section 1978.110 Decisions and Orders of the Administrative Review Board

This section is borrowed largely from existing regulations implementing other OSHA whistleblower laws. Minor editorial corrections have been made in the final rule. In accordance with the decision to discontinue automatic ARB review of ALJ decisions, paragraph (a) of this section gives the parties 14 days from the date of the ALJ's decision to file a petition for review with the ARB. If no timely petition for review is filed, the decision of the ALJ becomes the final decision of the Secretary, and is not subject to judicial review. Paragraph (a) also clarifies that the date of the postmark, fax, electronic communication transmittal, or hand-delivery will be deemed the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. In its comments, NWC suggested that the filing period be extended from 10 business days to 30 days to make this section parallel to the provision in 1978.105(c), which allows for 30 days within which to file an objection. OSHA declines to extend the filing period to 30 days because the 14-day filing period is consistent with the practices and procedures followed in OSHA's other whistleblower programs. Furthermore, parties may file a motion for extension of time to appeal an ALJ's decision, and the ARB has discretion to grant such extensions. However, as explained above, OSHA has revised the period to petition for review of an ALJ decision to 14 days rather than 10 business days. As a practical matter, this revision does not substantively alter the window of time for filing a petition for review before the ALJ's order becomes final.

With regard to section 1978.110(a), NWC urged deletion of the provision that “[t]he parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections will ordinarily be deemed waived.” NWC commented that parties should be allowed to add additional grounds for review in subsequent briefs and that allowing parties to do so would further the goal of deciding cases on the merits. OSHA's inclusion of this provision is not intended to limit the circumstances in which parties can add additional grounds for review as a case progresses before the ARB, but rather the rules include this provision to put the public on notice of the possible consequences of failing to specify the basis of a petition to the ARB. OSHA recognizes that while the ARB has held in some instances that an exception not specifically urged may be deemed waived, the ARB also has found that the rules provide for exceptions to this general rule. See, e.g., Furland v. American Airlines, Inc., Nos. 09-102, 10-130, 2011 WL 3413364, at *7, n.5 (ARB Jul. 27, 2011), petition for review filed, (11th Cir. Oct. 3, 2011) (No. 11-14419-C) (where a complainant consistently made an argument throughout the administrative proceedings the argument was not waived simply because it appeared in the complainant's reply brief to the ARB rather than in the petition for review); Avlon v. American Express Co., No. 09-089, 2011 WL 4915756, at *4-5, n.1 (ARB Sept. 14, 2011) (consideration of an argument not specifically raised in complainant's petition for review is believed to be within the authority of the ARB, and parallel provisions in Sarbanes-Oxley whistleblower regulations do not mandate that the ARB must limit its review to ALJ conclusions assigned as error in the petition for review); Brookman v. Levi Strauss, No. 07-074, 2008 WL 7835844, at *5 (ARB Jul. 23, 2008) (concurring with the ALJ's findings despite Complainant's failure to specifically identify objections and invoke ARB review). However, recognizing that the interim final rule may have suggested too stringent a standard, the phrase “will ordinarily” has been replaced with “may.”

Consistent with the procedures for petitions for review under other OSHA-administered whistleblower laws, paragraph (b) provides that the ARB has discretion to accept or reject review in STAA whistleblower cases. Congress intended these whistleblower cases to be expedited, as reflected by the recent amendment to STAA providing for a hearing de novo in district court if the Secretary has not issued a final decision within 210 days of the filing of the complaint. Making review of STAA whistleblower cases discretionary may assist in furthering that goal.

The ARB has 30 days to decide whether to grant a petition for review. If the ARB does not grant the petition, the decision of the ALJ becomes the final decision of the Secretary. This section further provides that when the ARB accepts a petition for review, it will review the ALJ's factual determinations under the substantial evidence standard, a standard previously set forth in section 1978.109(c)(3) before the issuance of the IFR. If a timely petition for review is filed with the ARB, relief ordered by the ALJ is inoperative while the matter is pending before the ARB, except that orders of reinstatement will be effective pending review. Paragraph (b) does provide that in exceptional circumstances the ARB may grant a motion to stay an ALJ's order of reinstatement. A stay of a reinstatement order is only appropriate when the respondent can establish the necessary criteria for a stay, i.e., the respondent will suffer irreparable injury; the respondent is likely to succeed on the merits; a balancing of possible harms to the parties favors the respondent; and the public interest favors a stay.

Paragraph (c), which provides that the ARB will issue a final decision within 120 days of the conclusion of the ALJ hearing, was revised to state that the conclusion of the ALJ hearing will be deemed to be 14 days after the date of the decision of the ALJ, rather than after 10 business days, unless a motion for reconsideration has been filed with the ALJ in the interim. Like the revision to section 1978.110(a), explained above, this revision does not substantively alter the length of time before the ALJ hearing will be deemed to have been concluded. This paragraph further provides for the ARB's decision in all cases to be served on all parties, the Chief Administrative Law Judge, the Assistant Secretary, and the Associate Solicitor for Occupational Safety and Health.

Paragraph (d) describes the remedies the ARB can award if it concludes that the respondent has violated STAA's whistleblower provision (see earlier discussion of section 1978.109(d)(1)). In addition, under paragraph (e), if the ARB determines that the respondent has not violated STAA, it will issue an order denying the complaint. Paragraph (f) clarifies that the procedures for seeking review before the ARB apply to all cases in which ALJ decisions were issued on or after the effective date of the IFR, August 31, 2010.

This section provides procedures and time periods for the withdrawal of complaints, the withdrawal of findings and/or preliminary orders by the Assistant Secretary, the withdrawal of objections to findings and/or preliminary orders, and the withdrawal of petitions for review of ALJ decisions. It also provides for the approval of settlements at the investigative and adjudicative stages of the case. Minor editorial changes have been made in the final rule.

Paragraph (a) permits a complainant to withdraw orally or in writing his or her complaint to the Assistant Secretary, at any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order. The Assistant Secretary confirms in writing the complainant's desire to withdraw and will determine whether to approve the withdrawal. The Assistant Secretary will notify all parties if the withdrawal is approved. Paragraph (a) clarifies that complaints that are withdrawn pursuant to settlement agreements prior to the filing of objections must be approved in accordance with the settlement approval procedures in paragraph (d). In addition, paragraph (a) clarifies that the complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order. Paragraph (c) addresses situations in which parties seek to withdraw either objections to the Assistant Secretary's findings and/or preliminary order or petitions for review of ALJ decisions. Paragraph (c) provides that a party may withdraw objections to the Assistant Secretary's findings and/or preliminary order at any time before the findings and preliminary order become final by filing a written withdrawal with the ALJ. Similarly, if a case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, depending on where the case is pending, will determine whether to approve the withdrawal of the objections or the petition for review. Paragraph (c) clarifies that if the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or preliminary order, and there are no other pending objections, the Assistant Secretary's findings and preliminary order will become the final order of the Secretary. Likewise, if the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. Finally, paragraph (c) provides that if objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d).

Paragraph (d)(1) states that a case may be settled at the investigative stage if the Assistant Secretary, the complainant, and the respondent agree. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates his or her consent and achieves the consent of all three parties. Minor, non-substantive changes are being made to paragraph (d)(2). Paragraph (d)(3) is being deleted because the withdrawal of the Assistant Secretary as a party as a matter of prosecutorial discretion is adequately covered by section .107(a)(2). Paragraph (e), borrowing language from similar provisions in other OSHA whistleblower regulations, clarifies that settlements approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in federal district court pursuant to 49 U.S.C. 31105(e).

Section 1978.112 Judicial Review

This section describes the statutory provisions for judicial review of decisions of the Secretary and, in cases where judicial review is sought, requires the ARB to submit the record of proceedings to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court. Non-substantive revisions to paragraphs (a), (b), and (c) were made in the IFR and are continued here. Minor editorial changes from the IFR were made in the final rule. In the final rule a reference to the transmission of the record to a court of appeals by an ALJ has been made because parties may file petitions for review of those decisions in the courts of appeals where they have previously requested review by the ARB and the ARB has denied review.

Former section 1978.112, which addressed postponement due to the pendency of proceedings in other forums, including grievance-arbitration proceedings under collective bargaining agreements, and deferral to the outcomes of such proceedings, was deleted in the IFR to conform to other OSHA whistleblower regulations, which do not contain similar provisions; that deletion remains. This is a non-substantive change. Postponement and deferral principles will still be applied in accordance with case law.

Section 1978.113 Judicial Enforcement

In the IFR, non-substantive revisions were made to this section, which describes the Secretary's power under STAA's whistleblower provision to obtain judicial enforcement of orders, including orders approving settlement agreements; the final rule adopts those revisions. Minor editorial corrections have been made in the final rule.

Section 1978.114 District Court Jurisdiction of Retaliation Complaints under STAA

This section deals with the recent amendment to STAA, 49 U.S.C. 31105(c), allowing a complainant in a STAA whistleblower case to bring an action in district court for de novo review if there has been no final decision of the Secretary and 210 days have passed since the filing of the complaint and the delay was not due to the complainant's bad faith. Section 1978.114 has been drafted to reflect the Secretary's position that it would not be reasonable to construe the statute to permit a complainant to initiate an action in federal court after the Secretary issues a final decision, even if the date of the final decision is more than 210 days after the filing of the administrative complaint. In the Secretary's view, the purpose of the “kick-out” provision is to aid the complainant in receiving a prompt decision. That goal is not implicated in a situation where the complainant already has received a final decision from the Secretary. In addition, permitting the complainant to file a new case in district court in such circumstances could conflict with the parties' rights to seek judicial review of the Secretary's final decision in the court of appeals. The regulations have been drafted in accordance with this position. Minor editorial corrections have been made in the final rule.

The IFR did not note that 49 U.S.C. 31105(c) guarantees the right to a jury trial at the request of either party in these cases. This rule notes that statutory provision.

In this section, OSHA eliminated the requirement that complainants provide the agency 15 days advance notice before filing a de novo complaint in district court. Instead, this section provides that within seven days after filing a complaint in district court, a complainant must provide a file-stamped copy of the complaint to the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending. A copy of the complaint also must be provided to the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. This provision is necessary to notify the agency that the complainant has opted to file a complaint in district court. This provision is not a substitute for the complainant's compliance with the requirements for service of process of the district court complaint contained in the Federal Rules of Civil Procedure and the local rules of the district court where the complaint is filed. The reference to the OSHA Regional Administrator in the IFR has been changed in the final rule to a reference to the OSHA official who issued the findings and/or preliminary order to reflect the possibility (not currently contemplated) of future organizational changes.

This change responds to NWC's comment that the 15-day advance notice requirement for filing a suit in district court should be eliminated because it inhibits complainants' access to federal courts. OSHA believes that a provision for notifying the agency of the district court complaint is necessary to avoid unnecessary expenditure of agency resources once a complainant has decided to remove the case to federal district court. OSHA believes that the revised provision adequately balances the complainant's interest in ready access to federal court and the agency's interest in receiving prompt notice that the complainant no longer wishes to continue with the administrative proceeding.

Section 1978.115 Special Circumstances; Waiver of Rules

This section provides that in circumstances not contemplated by these rules or for good cause the ALJ or the ARB may, upon application and three days notice to the parties, waive any rule or issue such orders as justice or the administration of STAA's whistleblower provision requires.

In the IFR, OSHA deleted former section 1978.114, which provided that the time requirements imposed on the Secretary by these regulations are directory in nature and that a failure to meet those requirements did not invalidate any action by the Assistant Secretary or Secretary under STAA; that deletion remains. These principles are well-established in the case law, see, e.g., Roadway Express v. Dole, 929 F.2d 1060, 1066 (5th Cir. 1991), and this provision, which was unique to OSHA's STAA regulations, is unnecessary. The deletion of this provision is a non-substantive amendment. No significant change in STAA practices or procedures is intended.

V. Paperwork Reduction Act

This rule contains a reporting provision (filing a retaliation complaint, section 1978.103) which was previously reviewed and approved for use by the Office of Management and Budget (OMB) under the provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995). The assigned OMB control number is 1218-0236.

VI. Administrative Procedure Act

The notice and comment rulemaking procedures of Section 553 of the Administrative Procedure Act (“APA”) do not apply to “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A). Part 1978 sets forth interpretive rules and rules of agency procedure and practice within the meaning of that section. Therefore, publication in the Federal Register of a notice of proposed rulemaking and request for comments was not required. Although part 1978 was not subject to the notice and comment procedures of the APA, the Assistant Secretary sought and considered comments to enable the agency to improve the rules by taking into account the concerns of interested persons.

Furthermore, because this rule is procedural and interpretive rather than substantive, the normal requirement of 5 U.S.C. 553(d) that a rule be effective 30 days after publication in the Federal Register is inapplicable. The Assistant Secretary also finds good cause to provide an immediate effective date for this rule. It is in the public interest that the rule be effective immediately so that parties may know what procedures are applicable to pending cases. Furthermore, most of the provisions of this rule were in the IFR and have already been in effect since August 31, 2010.

The agency has concluded that this rule is not a “significant regulatory action” within the meaning of Executive Order 12866, reaffirmed by Executive Order 13563, because it is not likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866. Therefore, no regulatory impact analysis has been prepared.

Because no notice of proposed rulemaking was published, no statement is required under Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532. In any event, this rulemaking is procedural and interpretive in nature and is thus not expected to have a significant economic impact. Finally, this rule does not have “federalism implications.” The rule does not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government” and therefore is not subject to Executive Order 13132 (Federalism).

VIII. Regulatory Flexibility Analysis

The agency has determined that the regulation will not have a significant economic impact on a substantial number of small entities. The regulation sets forth procedures and interpretations, many of which were necessitated by statutory amendments enacted by Congress. Additionally, the regulatory revisions are necessary for the sake of consistency with the regulatory provisions governing procedures under other whistleblower statutes administered by OSHA. Furthermore, no certification to this effect is required and no regulatory flexibility analysis is required because no proposed rule has been issued.

This document was prepared under the direction and control of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health.

Signed at Washington, DC, on July 18, 2012.David Michaels,Assistant Secretary of Labor for Occupational Safety and Health.

Accordingly, for the reasons set out in the preamble part 1978 of Title 29 of the Code of Federal Regulations is revised to read as follows:

PART 1978—PROCEDURES FOR THE HANDLING OF RETALIATION COMPLAINTS UNDER THE EMPLOYEE PROTECTION PROVISION OF THE SURFACE TRANSPORTATION ASSISTANCE ACT OF 1982 (STAA), AS AMENDEDSubpart A—Complaints, Investigations, Findings, and Preliminary OrdersSec.1978.100 Purpose and scope.1978.101 Definitions.1978.102 Obligations and prohibited acts.1978.103 Filing of retaliation complaints.1978.104 Investigation.1978.105 Issuance of findings and preliminary orders.Subpart B—Litigation1978.106 Objections to the findings and the preliminary order and request for a hearing.1978.107 Hearings.1978.108 Role of Federal agencies.1978.109 Decisions and orders of the administrative law judge.1978.110 Decisions and orders of the Administrative Review Board.Subpart C—Miscellaneous Provisions1978.111 Withdrawal of STAA complaints, findings, objections, and petitions for review; settlement.1978.112 Judicial review.1978.113 Judicial enforcement.1978.114 District court jurisdiction of retaliation complaints under STAA.1978.115 Special circumstances; waiver of rules.Authority:

(a) This part sets forth, the procedures for, and interpretations of, the employee protection (whistleblower) provision of the Surface Transportation Assistance Act of 1982 (STAA), 49 U.S.C. 31105, as amended, which protects employees from retaliation because the employee has engaged in, or is perceived to have engaged in, protected activity pertaining to commercial motor vehicle safety, health, or security matters.

(b) This part establishes procedures under STAA for the expeditious handling of retaliation complaints filed by employees, or by persons acting on their behalf. These rules, together with those rules codified at 29 CFR part 18, set forth the procedures for submission of complaints, investigations, issuance of findings and preliminary orders, objections to findings and orders, litigation before administrative law judges (ALJs), post-hearing administrative review, and withdrawals and settlements. This part also sets forth interpretations of STAA.

(b) Assistant Secretary means the Assistant Secretary of Labor for Occupational Safety and Health or the person or persons to whom he or she delegates authority under the Act.

(c) Business days means days other than Saturdays, Sundays, and Federal holidays.

(d) Commercial motor carrier means any person engaged in a business affecting commerce between States or between a State and a place outside thereof who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate such a vehicle.

(f) Complainant means the employee who filed a STAA complaint or on whose behalf a complaint was filed.

(g) Complaint, for purposes of § 1978.102(b)(1) and (e)(1), includes both written and oral complaints to employers, government agencies, and others.

(h) Employee means a driver of a commercial motor vehicle (including an independent contractor when personally operating a commercial motor vehicle), a mechanic, a freight handler, or an individual not an employer, who:

(1) Directly affects commercial motor vehicle safety or security in the course of employment by a commercial motor carrier; and

(2) Is not an employee of the United States Government, a State, or a political subdivision of a State acting in the course of employment.

(3) The term includes an individual formerly performing the work described above or an applicant for such work.

(i) Employer means a person engaged in a business affecting commerce that owns or leases a commercial motor vehicle in connection with that business, or assigns an employee to operate the vehicle in commerce, but does not include the Government, a State, or a political subdivision of a State.

(j) OSHA means the Occupational Safety and Health Administration of the United States Department of Labor.

(k) Person means one or more individuals, partnerships, associations, corporations, business trusts, legal representatives, or any other organized group of individuals.

(m) Secretary means the Secretary of Labor or persons to whom authority under the Act has been delegated.

(n) State means a State of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.

(o) Any future statutory amendments that affect the definition of a term or terms listed in this section will apply in lieu of the definition stated herein.

§ 1978.102 Obligations and prohibited acts.

(a) No person may discharge or otherwise retaliate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the employee engaged in any of the activities specified in paragraphs (b) or (c) of this section. In addition, no person may discharge or otherwise retaliate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because a person acting pursuant to the employee's request engaged in any of the activities specified in paragraph (b).

(b) It is a violation for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, or in any other manner retaliate against any employee because the employee or a person acting pursuant to the employee's request has:

(1) Filed orally or in writing a complaint with an employer, government agency, or others or begun a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order; or

(2) Testified or will testify at any proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard, or order.

(c) It is a violation for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, or in any other manner retaliate against any employee because the employee:

(1) Refuses to operate a vehicle because:

(i) The operation violates a regulation, standard, or order of the United States related to commercial motor vehicle safety, health, or security; or

(ii) He or she has a reasonable apprehension of serious injury to himself or herself or the public because of the vehicle's hazardous safety or security condition;

(2) Accurately reports hours on duty pursuant to Chapter 315 of Title 49 of the United States Code; or

(3) Cooperates with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or

(4) Furnishes information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

(d) No person may discharge or otherwise retaliate against any employee with respect to the employee's compensation, terms, conditions, or privileges of employment because the person perceives that the employee has engaged in any of the activities specified in paragraph (e) of this section.

(e) It is a violation for any person to intimidate, threaten, restrain, coerce, blacklist, discharge, discipline, harass, suspend, demote, or in any other manner retaliate against any employee because the employer perceives that:

(1) The employee has filed orally or in writing or is about to file orally or in writing a complaint with an employer, government agency, or others or has begun or is about to begin a proceeding related to a violation of a commercial motor vehicle safety or security regulation, standard or order;

(2) The employee is about to cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board; or

(3) The employee has furnished or is about to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with commercial motor vehicle transportation.

(f) For purposes of this section, an employee's apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury or serious impairment to health. To qualify for protection, the employee must have sought from the employer, and been unable to obtain, correction of the hazardous safety or security condition.

§ 1978.103 Filing of retaliation complaints.

(a) Who may file. An employee who believes that he or she has been retaliated against by an employer in violation of STAA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation.

(b) Nature of filing. No particular form of complaint is required. A complaint may be filed orally or in writing. Oral complaints will be reduced to writing by OSHA. If the complainant is unable to file a complaint in English, OSHA will accept the complaint in any other language.

(c) Place of filing. The complaint should be filed with the OSHA office responsible for enforcement activities in the geographical area where the employee resides or was employed, but may be filed with any OSHA officer or employee. Addresses and telephone numbers for these officials are set forth in local directories and at the following Internet address: http://www.osha.gov.

(d) Time for filing. Within 180 days after an alleged violation of STAA occurs, any employee who believes that he or she has been retaliated against in violation of STAA may file, or have filed by any person on the employee's behalf, a complaint alleging such retaliation. The date of the postmark, facsimile transmittal, electronic communication transmittal, telephone call, hand-delivery, delivery to a third-party commercial carrier, or in-person filing at an OSHA office will be considered the date of filing. The time for filing a complaint may be tolled for reasons warranted by applicable case law.

(e) Relationship to section 11(c) complaints. A complaint filed under STAA alleging facts that would also constitute a violation of section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. 660(c), will be deemed to be a complaint under both STAA and section 11(c). Similarly, a complaint filed under section 11(c) that alleges facts that would also constitute a violation of STAA will be deemed to be a complaint filed under both STAA and section 11(c). Normal procedures and timeliness requirements under the respective statutes and regulations will be followed.

§ 1978.104 Investigation.

(a) Upon receipt of a complaint in the investigating office, the Assistant Secretary will notify the respondent of the filing of the complaint by providing the respondent with a copy of the complaint, redacted in accordance with the Privacy Act of 1974, 5 U.S.C. 552a and other applicable confidentiality laws. The Assistant Secretary will also notify the respondent of the respondent's rights under paragraphs (b) and (f) of this section. The Assistant Secretary will provide a copy of the unredacted complaint to the complainant (or complainant's legal counsel, if complainant is represented by counsel) and to the Federal Motor Carrier Safety Administration.

(b) Within 20 days of receipt of the notice of the filing of the complaint provided under paragraph (a) of this section, the respondent may submit to the Assistant Secretary a written statement and any affidavits or documents substantiating its position. Within the same 20 days, the respondent may request a meeting with the Assistant Secretary to present its position.

(c) Throughout the investigation, the agency will provide to the complainant (or the complainant's legal counsel, if complainant is represented by counsel) a copy of all of respondent's submissions to the agency that are responsive to the complainant's whistleblower complaint. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The agency will also provide the complainant with an opportunity to respond to such submissions.

(d) Investigations will be conducted in a manner that protects the confidentiality of any person who provides information on a confidential basis, other than the complainant, in accordance with part 70 of this title.

(e)(1) A complaint will be dismissed unless the complainant has made a prima facie showing that protected activity was a contributing factor in the adverse action alleged in the complaint.

(2) The complaint, supplemented as appropriate by interviews of the complainant, must allege the existence of facts and evidence to make a prima facie showing as follows:

(i) The employee engaged in a protected activity, either actual activity or activity about to be undertaken;

(ii) The respondent knew or suspected, actually or constructively, that the employee engaged in the protected activity;

(iii) The employee suffered an adverse action; and

(iv) The circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action.

(3) For purposes of determining whether to investigate, the complainant will be considered to have met the required burden if the complaint on its face, supplemented as appropriate through interviews of the complainant, alleges the existence of facts and either direct or circumstantial evidence to meet the required showing, i.e., to give rise to an inference that the respondent knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action. The burden may be satisfied, for example, if the complainant shows that the adverse action took place shortly after the protected activity, giving rise to the inference that it was a contributing factor in the adverse action. If the required showing has not been made, the complainant (or the complainant's legal counsel, if complainant is represented by counsel) will be so notified and the investigation will not commence.

(4) Notwithstanding a finding that a complainant has made a prima facie showing, as required by this section, an investigation of the complaint will not be conducted or will be discontinued if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant's protected activity.

(5) If the respondent fails to make a timely response or fails to satisfy the burden set forth in the prior paragraph, the Assistant Secretary will proceed with the investigation. The investigation will proceed whenever it is necessary or appropriate to confirm or verify the information provided by the respondent.

(f) Prior to the issuance of findings and a preliminary order as provided for in § 1978.105, if the Assistant Secretary has reasonable cause, on the basis of information gathered under the procedures of this part, to believe that the respondent has violated the Act and that preliminary reinstatement is warranted, the Assistant Secretary will again contact the respondent (or the respondent's legal counsel, if respondent is represented by counsel) to give notice of the substance of the relevant evidence supporting the complainant's allegations as developed during the course of the investigation. This evidence includes any witness statements, which will be redacted to protect the identity of confidential informants where statements were given in confidence; if the statements cannot be redacted without revealing the identity of confidential informants, summaries of their contents will be provided. The complainant will also receive a copy of the materials that must be provided to the respondent under this paragraph. Before providing such materials to the complainant, the agency will redact them, if necessary, in accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable confidentiality laws. The respondent will be given the opportunity to submit a written response, to meet with the investigators, to present statements from witnesses in support of its position, and to present legal and factual arguments. The respondent must present this evidence within 10 business days of the Assistant Secretary's notification pursuant to this paragraph, or as soon thereafter as the Assistant Secretary and the respondent can agree, if the interests of justice so require.

§ 1978.105 Issuance of findings and preliminary orders.

(a) After considering all the relevant information collected during the investigation, the Assistant Secretary will issue, within 60 days of the filing of the complaint, written findings as to whether there is reasonable cause to believe that the respondent has retaliated against the complainant in violation of STAA.

(1) If the Assistant Secretary concludes that there is reasonable cause to believe that a violation has occurred, the Assistant Secretary will accompany the findings with a preliminary order providing relief. Such order will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position, with the same compensation, terms, conditions and privileges of the complainant's employment; and payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant has incurred). Interest on backpay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily. The preliminary order may also require the respondent to pay punitive damages up to $250,000.

(2) If the Assistant Secretary concludes that a violation has not occurred, the Assistant Secretary will notify the parties of that finding.

(b) The findings and, where appropriate, the preliminary order will be sent by certified mail, return receipt requested, to all parties of record (and each party's legal counsel if the party is represented by counsel). The findings and, where appropriate, the preliminary order will inform the parties of the right to object to the findings and/or the order and to request a hearing. The findings and, where appropriate, the preliminary order also will give the address of the Chief Administrative Law Judge, U.S. Department of Labor. At the same time, the Assistant Secretary will file with the Chief Administrative Law Judge a copy of the original complaint and a copy of the findings and/or order.

(c) The findings and the preliminary order will be effective 30 days after receipt by the respondent (or the respondent's legal counsel if the respondent is represented by counsel), or on the compliance date set forth in the preliminary order, whichever is later, unless an objection and request for a hearing have been timely filed as provided at § 1978.106. However, the portion of any preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and the preliminary order, regardless of any objections to the findings and/or the order.

Subpart B—Litigation§ 1978.106 Objections to the findings and the preliminary order and request for a hearing.

(a) Any party who desires review, including judicial review, must file any objections and a request for a hearing on the record within 30 days of receipt of the findings and preliminary order pursuant to § 1978.105(c). The objections and request for a hearing must be in writing and state whether the objections are to the findings and/or the preliminary order. The date of the postmark, facsimile transmittal, or electronic communication transmittal is considered the date of filing; if the objection is filed in person, by hand-delivery or other means, the objection is filed upon receipt. Objections must be filed with the Chief Administrative Law Judge, U.S. Department of Labor, and copies of the objections must be mailed at the same time to the other parties of record and the OSHA official who issued the findings.

(b) If a timely objection is filed, all provisions of the preliminary order will be stayed, except for the portion requiring preliminary reinstatement, which will not be automatically stayed. The portion of the preliminary order requiring reinstatement will be effective immediately upon the respondent's receipt of the findings and preliminary order, regardless of any objections to the order. The respondent may file a motion with the Office of Administrative Law Judges for a stay of the Assistant Secretary's preliminary order of reinstatement, which shall be granted only based on exceptional circumstances. If no timely objection is filed with respect to either the findings or the preliminary order, the findings and/or the preliminary order will become the final decision of the Secretary, not subject to judicial review.

§ 1978.107 Hearings.

(a) Except as provided in this part, proceedings will be conducted in accordance with the rules of practice and procedure for administrative hearings before the Office of Administrative Law Judges, codified at subpart A of part 18 of this title.

(b) Upon receipt of an objection and request for hearing, the Chief Administrative Law Judge will promptly assign the case to an ALJ who will notify the parties, by certified mail, of the day, time, and place of hearing. The hearing is to commence expeditiously, except upon a showing of good cause or unless otherwise agreed to by the parties. Hearings will be conducted de novo on the record. Administrative law judges have broad discretion to limit discovery in order to expedite the hearing.

(c) If both the complainant and the respondent object to the findings and/or order, the objections will be consolidated and a single hearing will be conducted.

(d) Formal rules of evidence will not apply, but rules or principles designed to assure production of the most probative evidence will be applied. The ALJ may exclude evidence that is immaterial, irrelevant, or unduly repetitious.

§ 1978.108 Role of Federal agencies.

(a)(1) The complainant and the respondent will be parties in every proceeding. In any case in which the respondent objects to the findings or the preliminary order the Assistant Secretary ordinarily will be the prosecuting party. In any other cases, at the Assistant Secretary's discretion, the Assistant Secretary may participate as a party or participate as amicus curiae at any stage of the proceeding. This right to participate includes, but is not limited to, the right to petition for review of a decision of an ALJ, including a decision approving or rejecting a settlement agreement between the complainant and the respondent.

(2) If the Assistant Secretary assumes the role of prosecuting party in accordance with paragraph (a)(1) of this section, he or she may, upon written notice to the ALJ or the Administrative Review Board, as the case may be, and the other parties, withdraw as the prosecuting party in the exercise of prosecutorial discretion. If the Assistant Secretary withdraws, the complainant will become the prosecuting party and the ALJ or the Administrative Review Board, as the case may be, will issue appropriate orders to regulate the course of future proceedings.

(3) Copies of documents in all cases shall be sent to the parties or, if they are represented by counsel, to the latter. In cases in which the Assistant Secretary is a party, copies of documents shall be sent to the Regional Solicitor's Office representing the Assistant Secretary.

(b) The Federal Motor Carrier Safety Administration, if interested in a proceeding, may participate as amicus curiae at any time in the proceeding, at its discretion. At the request of the Federal Motor Carrier Safety Administration, copies of all documents in a case must be sent to that agency, whether or not that agency is participating in the proceeding.

§ 1978.109 Decisions and orders of the administrative law judge.

(a) The decision of the ALJ will contain appropriate findings, conclusions, and an order pertaining to the remedies provided in paragraph (d) of this section, as appropriate. A determination that a violation has occurred may be made only if the complainant has demonstrated by a preponderance of the evidence that protected activity was a contributing factor in the adverse action alleged in the complaint.

(b) If the complainant or the Assistant Secretary has satisfied the burden set forth in the prior paragraph, relief may not be ordered if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of any protected activity.

(c) Neither the Assistant Secretary's determination to dismiss a complaint without completing an investigation pursuant to § 1978.104(e) nor the Assistant Secretary's determination to proceed with an investigation is subject to review by the ALJ, and a complaint may not be remanded for the completion of an investigation or for additional findings on the basis that a determination to dismiss was made in error. Rather, if there otherwise is jurisdiction, the ALJ will hear the case on the merits or dispose of the matter without a hearing if the facts and circumstances warrant.

(d)(1) If the ALJ concludes that the respondent has violated the law, the ALJ will issue an order that will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees which the complainant may have incurred); and payment of punitive damages up to $250,000. Interest on backpay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

(2) If the ALJ determines that the respondent has not violated the law, an order will be issued denying the complaint.

(e) The decision will be served upon all parties to the proceeding, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor. Any ALJ's decision requiring reinstatement or lifting an order of reinstatement by the Assistant Secretary will be effective immediately upon receipt of the decision by the respondent. For ALJ decisions issued on or after the effective date of the interim final rule, August 31, 2010, all other portions of the ALJ's order will be effective 14 days after the date of the decision unless a timely petition for review has been filed with the Administrative Review Board (ARB), U.S. Department of Labor. Any ALJ decision issued on or after the effective date of the interim final rule, August 31, 2010, will become the final order of the Secretary unless a petition for review is timely filed with the ARB and the ARB accepts the decision for review.

§ 1978.110 Decisions and orders of the Administrative Review Board.

(a) The Assistant Secretary or any other party desiring to seek review, including judicial review, of a decision of the ALJ must file a written petition for review with the ARB, which has been delegated the authority to act for the Secretary and issue final decisions under this part. The parties should identify in their petitions for review the legal conclusions or orders to which they object, or the objections may be deemed waived. A petition must be filed within 14 days of the date of the decision of the ALJ. The date of the postmark, facsimile transmittal, or electronic communication transmittal will be considered to be the date of filing; if the petition is filed in person, by hand-delivery or other means, the petition is considered filed upon receipt. The petition must be served on all parties and on the Chief Administrative Law Judge at the time it is filed with the ARB. Copies of the petition for review and all briefs must be served on the Assistant Secretary and, in cases in which the Assistant Secretary is a party, on the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.

(b) If a timely petition for review is filed pursuant to paragraph (a) of this section, the decision of the ALJ will become the final order of the Secretary unless the ARB, within 30 days of the filing of the petition, issues an order notifying the parties that the case has been accepted for review. If a case is accepted for review, the decision of the ALJ will be inoperative unless and until the ARB issues an order adopting the decision, except that any order of reinstatement will be effective while review is conducted by the ARB unless the ARB grants a motion by the respondent to stay that order based on exceptional circumstances. The ARB will specify the terms under which any briefs are to be filed. The ARB will review the factual determinations of the ALJ under the substantial evidence standard. If no timely petition for review is filed, or the ARB denies review, the decision of the ALJ will become the final order of the Secretary. If no timely petition for review is filed, the resulting final order is not subject to judicial review.

(c) The final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which will be deemed to be 14 days after the date of the decision of the ALJ, unless a motion for reconsideration has been filed with the ALJ in the interim. In such case, the conclusion of the hearing is the date the motion for reconsideration is ruled upon or 14 days after a new decision is issued. The ARB's final decision will be served upon all parties and the Chief Administrative Law Judge by mail. The final decision also will be served on the Assistant Secretary, and on the Associate Solicitor, Division of Occupational Safety and Health, U.S, Department of Labor, even if the Assistant Secretary is not a party.

(d) If the ARB concludes that the respondent has violated the law, the ARB will issue a final order providing relief to the complainant. The final order will require, where appropriate: affirmative action to abate the violation; reinstatement of the complainant to his or her former position with the same compensation, terms, conditions, and privileges of the complainant's employment; payment of compensatory damages (backpay with interest and compensation for any special damages sustained as a result of the retaliation, including any litigation costs, expert witness fees, and reasonable attorney fees the complainant may have incurred); and payment of punitive damages up to $250,000. Interest on backpay will be calculated using the interest rate applicable to underpayment of taxes under 26 U.S.C. 6621 and will be compounded daily.

(e) If the ARB determines that the respondent has not violated the law, an order will be issued denying the complaint.

(f) Paragraphs (a) and (b) of this section apply to all cases in which the decision of the ALJ was issued on or after August 31, 2010.

(a) At any time prior to the filing of objections to the Assistant Secretary's findings and/or preliminary order, a complainant may withdraw his or her complaint by notifying the Assistant Secretary, orally or in writing, of his or her withdrawal. The Assistant Secretary then will confirm in writing the complainant's desire to withdraw and determine whether to approve the withdrawal. The Assistant Secretary will notify the parties (and each party's legal counsel if the party is represented by counsel) of the approval of any withdrawal. If the complaint is withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section. A complainant may not withdraw his or her complaint after the filing of objections to the Assistant Secretary's findings and/or preliminary order.

(b) The Assistant Secretary may withdraw the findings and/or preliminary order at any time before the expiration of the 30-day objection period described in § 1978.106, provided that no objection has been filed yet, and substitute new findings and/or a new preliminary order. The date of the receipt of the substituted findings or order will begin a new 30-day objection period.

(c) At any time before the Assistant Secretary's findings and/or preliminary order become final, a party may withdraw objections to the Assistant Secretary's findings and/or preliminary order by filing a written withdrawal with the ALJ. If a case is on review with the ARB, a party may withdraw a petition for review of an ALJ's decision at any time before that decision becomes final by filing a written withdrawal with the ARB. The ALJ or the ARB, as the case may be, will determine whether to approve the withdrawal of the objections or the petition for review. If the ALJ approves a request to withdraw objections to the Assistant Secretary's findings and/or order, and there are no other pending objections, the Assistant Secretary's findings and/or order will become the final order of the Secretary. If the ARB approves a request to withdraw a petition for review of an ALJ decision, and there are no other pending petitions for review of that decision, the ALJ's decision will become the final order of the Secretary. If objections or a petition for review are withdrawn because of settlement, the settlement must be submitted for approval in accordance with paragraph (d) of this section.

(d)(1) Investigative settlements. At any time after the filing of a STAA complaint and before the findings and/or order are objected to or become a final order by operation of law, the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement. The Assistant Secretary's approval of a settlement reached by the respondent and the complainant demonstrates the Assistant Secretary's consent and achieves the consent of all three parties.

(2) Adjudicatory settlements. At any time after the filing of objections to the Assistant Secretary's findings and/or order, the case may be settled if the participating parties agree to a settlement and the settlement is approved by the ALJ if the case is before the ALJ or by the ARB, if the ARB has accepted the case for review. A copy of the settlement will be filed with the ALJ or the ARB, as the case may be.

(e) Any settlement approved by the Assistant Secretary, the ALJ, or the ARB will constitute the final order of the Secretary and may be enforced in United States district court pursuant to 49 U.S.C. 31105(e).

§ 1978.112 Judicial review.

(a) Within 60 days after the issuance of a final order under §§ 1978.109 and 1978.110, any person adversely affected or aggrieved by the order may file a petition for review of the order in the United States Court of Appeals for the circuit in which the violation allegedly occurred or the circuit in which the person resided on the date of the violation.

(b) A final order is not subject to judicial review in any criminal or other civil proceeding.

(c) If a timely petition for review is filed, the record of a case, including the record of proceedings before the ALJ, will be transmitted by the ARB or the ALJ, as the case may be, to the appropriate court pursuant to the Federal Rules of Appellate Procedure and the local rules of such court.

§ 1978.113 Judicial enforcement.

Whenever any person has failed to comply with a preliminary order of reinstatement or a final order, including one approving a settlement agreement issued under STAA, the Secretary may file a civil action seeking enforcement of the order in the United States district court for the district in which the violation was found to have occurred.

§ 1978.114 District court jurisdiction of retaliation complaints under STAA.

(a) If there is no final order of the Secretary, 210 days have passed since the filing of the complaint, and there is no showing that there has been delay due to the bad faith of the complainant, the complainant may bring an action at law or equity for de novo review in the appropriate district court of the United States, which will have jurisdiction over such an action without regard to the amount in controversy. The action shall, at the request of either party to such action, be tried by the court with a jury.

(b) Within seven days after filing a complaint in federal court, a complainant must file with the Assistant Secretary, the ALJ, or the ARB, depending on where the proceeding is pending, a copy of the file-stamped complaint. A copy of the complaint also must be served on the OSHA official who issued the findings and/or preliminary order, the Assistant Secretary, and the Associate Solicitor, Division of Occupational Safety and Health, U.S. Department of Labor.

§ 1978.115 Special circumstances; waiver of rules.

In special circumstances not contemplated by the provisions of these rules, or for good cause shown, the ALJ or the ARB on review may, upon application, after three days notice to all parties, waive any rule or issue such orders as justice or the administration of STAA requires.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the community to participate in the Fleet Feet Event, Run to Remember 10K. This deviation allows the bridge to remain in the closed-to-navigation position during the event.

DATES:

This deviation is effective from 9:30 a.m. to 10:30 a.m. on September 9, 2012.

ADDRESSES:

Documents mentioned in this preamble as being available in the docket are part of docket USCG-2012-0692 and are available online by going to http://www.regulations.gov, inserting USCG-2012-0692 in the “Keyword” box and then clicking “Search”. They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email David.H.Sulouff@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, Sacramento River, at Sacramento, CA. The Tower Drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

The drawspan will be secured in the closed-to-navigation position from 9:30 a.m. to 10:30 a.m. on September 9, 2012 to allow the community to participate in the Fleet Feet Event, Run To Remember 10K. This temporary deviation has been coordinated with waterway users. There are no scheduled river boat cruises or anticipated levee maintenance during this deviation period. No objections to the proposed temporary deviation were raised. Vessels that can transit the bridge, while in the closed-to-navigation position, may continue to do so at any time. In the event of an emergency the drawspan can be opened with 15 minutes advance notice.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Coast Guard is changing the drawbridge operating schedule for the Maple-Oregon and Michigan Street Bridges across the Sturgeon Bay Ship Canal, at miles 4.17 and 4.3, in Sturgeon Bay, Wisconsin. The establishment of this schedule is necessary due to the construction of the Maple-Oregon Street Bridge and the completed rehabilitation of the Michigan Street Bridge. This final rule also confirms the winter drawbridge schedules for all three drawbridges over Sturgeon Bay Ship Canal, including the two previously mentioned bridges as well as the Bayview Bridge at mile 3.0.

DATES:

This rule is effective August 27, 2012.

ADDRESSES:

Comments and related materials received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2011-1109 and are available online by going to http://www.regulations.gov, inserting USCG-2011-1109 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Lee D. Soule, Bridge Management Specialist, U.S. Coast Guard, telephone 216-902-6085, email lee.d.soule@uscg.mil, or fax 216-902-6088. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: A. Regulatory History and Information

On April 12, 2012, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulation; Sturgeon Bay Ship Canal, Sturgeon Bay, WI, in the Federal Register (77 FR 21890). We did not receive any comments on the proposed rule. No public meeting was requested, and none was held.

B. Basis and Purpose

This rule establishes drawbridge schedules following the construction of the new Maple-Oregon Street Bridge and the extensive rehabilitation of the existing Michigan Street Bridge. This final rule is expected to provide for the safe and efficient passage of vessels requiring drawbridge openings, as well as the efficient movement of vehicular traffic in Sturgeon Bay.

The Sturgeon Bay Ship Canal is approximately 8.6 miles long and provides a navigable connection between Lake Michigan and Green Bay. The area experiences a significant increase in vehicular and vessel traffic during the peak tourist and navigation season between Memorial Day and Labor Day each year. There are a total of three highway drawbridges across the waterway. The Michigan Street Bridge provides unlimited vertical clearance in the open position and 14 feet in the closed position. Maple-Oregon Bridge provides unlimited vertical clearance in the open position and 25 feet in the closed position. Bayview Bridge also provides unlimited vertical clearance in the open position and 42 feet in the closed position. Both Michigan Street and Maple-Oregon Bridges serve the downtown Sturgeon Bay area and are located approximately 750 feet apart on the canal.

A final rule was published on October 24, 2005 in the Federal Register (70 FR 61380) to allow for one opening per hour at the Michigan Street Bridge for recreational vessels while the Maple-Oregon Bridge was constructed and the Michigan Street Bridge was rehabilitated. The final rule also included a requirement to open at any time if 20 or more vessels gathered waiting for bridge openings. A temporary final rule was published on June 5, 2009 in the Federal Register (74 FR 26954), effective from June 1, 2009 to November 15, 2010 that essentially shifted the one bridge opening per hour at Michigan Street Bridge to the Maple-Oregon Bridge while the rehabilitation of Michigan Street was completed and the bridge was kept in the open-to-navigation position. With both Michigan Street and Maple-Oregon Bridges operational, the one opening per hour schedule for Michigan Street is considered too restrictive for vessels and could create an unsafe condition for vessel traffic that may be between the two closely located drawbridges while waiting for bridge openings.

The Coast Guard issued a notice of temporary deviation from regulations that was published on May 17, 2011 in the Federal Register (76 FR 28309) with request for comments to implement a test drawbridge schedule for Michigan Street and Maple-Oregon Street Bridges between May 27, 2011 and September 16, 2011. The test schedule required the Michigan Street Bridge to open for recreational vessels twice an hour, on the hour and half-hour, 24 hours a day, 7 days a week, and required the Maple-Oregon Bridge to open for recreational vessels twice an hour, on the quarter hour and three-quarter hour, during the same times. The test schedule also included a change to the current regulation that required the bridge to open if 20 or more vessels gathered at the bridge waiting for a scheduled opening. Local opinion was that an opening if at least 10 vessels were gathered would be a safer maximum number of vessels.

The Coast Guard coordinated with all local stakeholders before, during, and after the test drawbridge schedule and did not receive any adverse comments to the test schedule.

The Wisconsin Department of Transportation (WDOT) requested scheduled drawbridge openings for both Michigan Street and Maple-Oregon Bridges so vehicular traffic congestion would not develop on downtown Sturgeon Bay streets due to unscheduled bridge openings. This rule provides at least two bridge openings per hour for both Michigan Street and Maple-Oregon Street bridges, compared to the one bridge opening per hour that was in place during the construction and rehabilitation of the two highway bridges. It also retains the requirement during the test schedule to open if at least 10 vessels have accumulated at either bridge waiting for an opening. This rule also establishes the winter operating date for Maple-Oregon Bridge (January 1 through March 14) and rearranges the order of the three drawbridges to be presented geographically in the regulatory language.

C. Discussion of Comments, Changes and the Final Rule

The Coast Guard provided a 30-day comment period in conjunction with the NPRM and no comments were received. The regulatory text published in the NPRM has not changed in this final rule.

D. Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes or executive orders.

1. Regulatory Planning and Review

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under that Order. This rule is expected to improve traffic congestion and safety in the vicinity of the drawbridge and does not exclude bridge openings for vessel traffic.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The Coast Guard did not receive any comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

4. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

6. Protest Activities

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

7. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

8. Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that might disproportionately affect children.

11. Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

12. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

13. Technical Standards

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction. Under figure 2-1, paragraph (32)(e) of the Instruction an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

List of Subjects in 33 CFR Part 117

Bridges.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE OPERATION REGULATIONS1. The authority citation for part 117 continues to read as follows:Authority:

(a) The Bayview (State Route 42/57) Bridge, mile 3.0 at Sturgeon Bay, shall open on signal, except from December 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.

(b) The draw of the Maple-Oregon Bridge, mile 4.17 at Sturgeon Bay, shall open on signal, except as follows:

(1) From March 15 through December 31, need open on signal for recreational vessels only on the quarter hour and three-quarter hour, 24 hours a day, if needed. However, if more than 10 vessels have accumulated at the bridge, or vessels are seeking shelter from severe weather, the bridge shall open on signal. This drawbridge, along with the Michigan Street drawbridge, shall open simultaneously for larger commercial vessels, as needed.

(2) From January 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.

(c) The draw of the Michigan Street Bridge, mile 4.3 at Sturgeon Bay, shall open on signal, except as follows:

(1) From March 15 through December 31, need open on signal for recreational vessels only on the hour and half-hour, 24 hours a day, if needed. However if more than 10 vessels have accumulated at the bridge, or vessels are seeking shelter from severe weather, the bridge shall open on signal. This drawbridge, along with the Maple-Oregon Street drawbridge, shall open simultaneously for larger commercial vessels, as needed.

(2) From January 1 through March 14, the draw shall open on signal if notice is given at least 12 hours in advance of intended passage.

The Coast Guard has issued a temporary deviation from the operating schedule that governs the Kansas City Southern vertical lift span bridge across the Neches River, mile 19.5, at Beaumont, Texas. The deviation is necessary to replace south vertical lift joints on the bridge. This deviation allows the bridge to remain closed to navigation for eight consecutive hours.

DATES:

This deviation is effective from 7 a.m. through 3 p.m. on Wednesday, August 8, 2012.

ADDRESSES:

Documents mentioned in this preamble as being available in the docket are part of docket USCG-2012-0682 and are available online by going to http://www.regulations.gov, inserting USCG-2012-0682 in the “Keyword” box and then clicking “Search”. They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Kay Wade, Bridge Administration Branch, Coast Guard; telephone 504-671-2128, email Kay.B.Wade@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

The Kansas City Southern Railroad has requested a temporary deviation from the operating schedule of the vertical lift span bridge across the Neches River at mile 19.5 in Beaumont, Texas. The vertical clearance of the bridge in the closed-to-navigation position is 13 feet above Mean High Water and 140 feet above Mean High Water in the open-to-navigation position.

In accordance with 33 CFR 117.971, the vertical lift span of the bridge is automated and normally not manned but will open on signal for the passage of vessels. This deviation allows the vertical lift span of the bridge to remain closed to navigation from 7 a.m. to 3 p.m. on Wednesday, August 8, 2012.

The closure is necessary in order to replace the south vertical lift joints on the bridge, which allow the bridge to be raised. This maintenance is essential for the continued operation of the bridge. Notices will be published in the Eighth Coast Guard District Local Notice to Mariners and will be broadcast via the Coast Guard Broadcast Notice to Mariners System.

Navigation on the waterway consists of commercial and recreational fishing vessels, small to medium crew boats, and small tugs with and without tows. No alternate routes are available for the passage of vessels; however, the closure was coordinated with waterway interests who have indicated that they will be able to adjust their operations around the proposed work schedule. Small vessels may pass under the bridge while in the closed-to-navigation position provided caution is exercised.

The bridge will be able to open manually in the event of an emergency, but it will take about one hour to do so.

Due to prior experience and coordination with waterway users, it has been determined that this closure will not have a significant effect on vessels that use the waterway.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

The Commander, Fifth Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Route 30/Absecon Boulevard Bridge across Beach Thorofare, NJICW mile 67.2 and the US40-322 (Albany Avenue) across Inside Thorofare, NJICW mile 70.0, both at Atlantic City, NJ. The deviation is necessary to ensure the safety of the heavy volumes of vehicular traffic that would be transiting over the bridges for the annual Air Show at Bader Field located within the city limits. This deviation allows the drawbridges to remain closed to navigation to accommodate the free movement of vehicles for the 2012 Air Show.

DATES:

This deviation is effective from 8:30 a.m. until 6 p.m. on Friday August 17, 2012.

ADDRESSES:

Documents mentioned in this preamble as being available in the docket are part of docket USCG-2012-0611 and are available online by going to http://www.regulations.gov, inserting USCG-2012-0611 in the “Keyword” box and then clicking “Search”. This material is also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

The New Jersey Department of Transportation requested a temporary deviation from the current operating regulations of the Route 30/Absecon Boulevard Bridge across Beach Thorofare, NJICW mile 67.2 and the US40-322 (Albany Avenue) across Inside Thorofare, NJICW mile 70.0, both at Atlantic City, NJ. The temporary deviation has been requested to ensure the safety of the heavy volumes of vehicular traffic that would be transiting over the bridges for the annual Air Show at Bader Field located within the city limits. The specific operating requirements for these drawbridges are normally planned for the third or fourth Wednesday of August, of every year. However, to celebrate the tenth anniversary of the 2012 Air Show and to accommodate for a larger crowd, Atlantic City—the host city, requested to reschedule the event to Friday, August 17, 2012. Under this temporary deviation, on Friday, August 17, 2012, the draws for both bridges will open every two hours on the hour from 10 a.m. until 3 p.m.; and need not open from 8:30 a.m. to 10 a.m. and from 3 p.m. to 6 p.m.

Route 30/Absecon Boulevard Bridge

The current operating regulation for the Route 30/Absecon Boulevard Bridge across Beach Thorofare is outlined at 33 CFR 117.733(e) which requires that the bridge shall open on signal if at least four hours of notice is given; except that from April 1 through October 31, from 7 a.m. to 11 p.m., the draw need only open on the hour; on July 4, the draw need not open from 9:40 p.m. until 11:15 p.m. to accommodate the annual July 4th fireworks show. Should inclement weather prevent the fireworks event from taking place as planned, the draw need not open from 9:40 p.m. until 11:15 p.m. on July 5th to accommodate the annual July 4th fireworks show; on the third or fourth Wednesday of August the draw will open every two hours on the hour from 10 a.m. until 4 p.m. and need not open from 4 p.m. until 8 p.m. to accommodate the annual Air Show. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 20 feet above mean high water.

US40-322 (Albany Avenue) Bridge

The current operating regulation for the US40-322 (Albany Avenue) Bridge across Inside Thorofare is outlined at 33 CFR 117.733(f) shall open on signal except that year-round, from 11 p.m. to 7 a.m.; and from November 1 through March 31 from 3 p.m. to 11 p.m., the draw need only open if at least four hours notice is given; from June 1 through September 30, from 9 a.m. to 4 p.m. and from 6 p.m. to 9 p.m., the draw need only open on the hour and half hour; and from 4 p.m. to 6 p.m., the draw need not open; on July 4, the draw need not open from 9:40 p.m. until 11:15 p.m., to accommodate the annual July 4th fireworks show. Should inclement weather prevent the fireworks event from taking place as planned, the draw need not open from 9:40 p.m. until 11:15 p.m. on July 5th to accommodate the annual July 4th fireworks show; and on the third or fourth Wednesday of August, the draw will open every two hours on the hour from 10 a.m. until 4 p.m. and need not open from 4 p.m. until 8 p.m. to accommodate the annual Air Show. In the closed position to vessels, the vertical clearance for this bascule-type bridge is 10 feet above mean high water.

The majority of the vessels that transit the bridges this time of the year are recreational boats. Vessels able to pass through the bridges in the closed positions may do so at anytime. Both bridges will be able to open for emergencies. The Atlantic Ocean is an alternate route for vessels unable to pass through the bridges in closed positions. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridges must return to their regular operating schedules immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

This document makes technical corrections to Title 36, Code of Federal Regulations, Part 219—Planning, Subpart A—National Forest System Land Management Planning (36 CFR part 219, subpart A). One technical correction at 36 CFR 219.11(d)(4) concerns the wording describing the maximum size for openings that may be cut in one harvest operation. The wording should have said “maximum size for openings” instead of “maximize size for openings.”

At 36 CFR 219.17(b)(2) and (b)(3), the reference to “36 CFR part 209” should be “36 CFR part 219” and reference to “parts 200 to 209” should be “parts 200 to 299” and, therefore, technical corrections have been made to Title 36, Code of Federal Regulations, Part 219—Planning, Subpart A—National Forest System Land Management Planning (36 CFR part 219, subpart A), § 219.17(b)(2) and (b)(3). The correct reference in section 219.17(b)(2) and (3) is ” (36 CFR Part 219, published at 36 CFR Parts 200 to 299, revised as of July 1, 2010).”

In addition, corrections have been made to punctuation, hyphenation, and wording errors. The punctuation, hyphenation, and word corrections do not change the content of the rule. These specific changes are as follows:

In § 219.4, paragraph (a), the acronym “NEPA” is spelled out; in paragraph (a)(2), the term “Government” is capitalized; and in paragraph (a)(3)(b)(2)(iii), the word “to” has been added.

In § 219.6 paragraph (a)(1), the word “contained” has been removed from the first sentence.

In § 219.7 paragraph (c)(2)(viii), the word “which” has been changed to “that.”

In § 219.11 paragraph (d)(4) “maximize” has been changed to “maximum” and in paragraph (d)(4)(ii) “60-days” has been hyphenated.

In § 219.19 Definitions, changes have been made in definitions as follows: at “Collaboration or collaborative process” the comma has been removed from “October, 2007;” at “Connectivity” the term “long distance” has been hyphenated; at “Cultural Services” a comma was added after the term “experiences;” and at “Source water protection areas” “the” was added to “Environmental Protection Agency.”

Need for Correction

As published, the final regulations contain errors which may be misleading and, therefore, need to be changed. Other changes are to make the document grammatically correct.

Accordingly, 36 CFR part 219 is corrected by making the following correcting amendments:

PART 219—PLANNING1. The authority citation for part 219 continues to read as follows:Authority:

5 U.S.C. 301; 16 U.S.C. 1604, 1613.

2. In § 219.4 revise paragraph (a) introductory text, and paragraphs (a)(2), and (b)(2)(iii) to read as follows:§ 219.4 Requirements for public participation.

(a) Providing opportunities for participation. The responsible official shall provide opportunities to the public for participating in the assessment process; developing a plan proposal, including the monitoring program; commenting on the proposal and the disclosure of its environmental impacts in accompanying National Environmental Policy Act (NEPA) documents; and reviewing the results of monitoring information. When developing opportunities for public participation, the responsible official shall take into account the discrete and diverse roles, jurisdictions, responsibilities, and skills of interested and affected parties; the accessibility of the process, opportunities, and information; and the cost, time, and available staffing. The responsible official should be proactive and use contemporary tools, such as the Internet, to engage the public, and should share information in an open way with interested parties. Subject to the notification requirements in § 219.16, the responsible official has the discretion to determine the scope, methods, forum, and timing of those opportunities. The Forest Service retains decisionmaking authority and responsibility for all decisions throughout the process.

(2) Consultation with federally recognized Indian Tribes and Alaska Native Corporations. The Department recognizes the Federal Government has certain trust responsibilities and a unique legal relationship with federally recognized Indian Tribes. The responsible official shall honor the government-to-government relationship between federally recognized Indian Tribes and the Federal Government. The responsible official shall provide to federally recognized Indian Tribes and Alaska Native Corporations the opportunity to undertake consultation consistent with Executive Order 13175 of November 6, 2000, and 25 U.S.C. 450 note.

(b) * * *

(2) * * *

(iii) Opportunities for the plan to address the impacts identified or to contribute to joint objectives; and

(1) Identify and consider relevant existing information in governmental or non-governmental assessments, plans, monitoring reports, studies, and other sources of relevant information. Such sources of information may include State forest assessments and strategies, the Resources Planning Act assessment, ecoregional assessments, non-governmental reports, State comprehensive outdoor recreation plans, community wildfire protection plans, public transportation plans, State wildlife data and action plans, and relevant Agency or interagency reports, resource plans or assessments. Relevant private information, including relevant land management plans and local knowledge, will be considered if publicly available or voluntarily provided.

4. In § 219.7 revise paragraph (c)(2)(viii) to read as follows:§ 219.7 New plan development or plan revision.

(c) * * *

(2) * * *

(viii) Identify the suitability of areas for the appropriate integration of resource management and uses, with respect to the requirements for plan components of §§ 219.8 through 219.11, including identifying lands that are not suitable for timber production (§ 219.11).

5. In § 219.11 revise paragraph (d)(4) introductory text, and paragraph (d)(4)(ii) to read as follows:§ 219.11 Timber requirements based on the NFMA.

(d) * * *

(4) Where plan components will allow clearcutting, seed tree cutting, shelterwood cutting, or other cuts designed to regenerate an even-aged stand of timber, the plan must include standards limiting the maximum size for openings that may be cut in one harvest operation, according to geographic areas, forest types, or other suitable classifications.

(ii) Plan components may allow for size limits exceeding those established in paragraphs (d)(4) introductory text and (d)(4)(i) of this section on an individual timber sale basis after “60-days” public notice and review by the regional forester.

(2) Initiating plan amendments. All plan amendments initiated after May 9, 2012, are subject to the objection process in subpart B of this part. With respect to plans approved or revised under a prior planning regulation, including the transition provisions of the reinstated 2000 rule (36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010), plan amendments may be initiated under the provisions of the prior planning regulation for 3 years after May 9, 2012, and may be completed and approved under those provisions (except for the optional appeal procedures of the prior planning regulation); or may be initiated, completed, and approved under the requirements of this part. After the 3-year transition period, all plan amendments must be initiated, completed, and approved under the requirements of this part.

(3) Plan development, plan amendments, or plan revisions initiated before this part. For plan development, plan amendments, or plan revisions that were initiated before May 9, 2012, the responsible official may complete and approve the plan, plan amendment, or plan revision in conformance with the provisions of the prior planning regulation, including its transition provisions (36 CFR part 219, published at 36 CFR parts 200 to 299, revised as of July 1, 2010), or may conform the plan, plan amendment, or plan revision to the requirements of this part. If the responsible official chooses to complete an ongoing planning process under the provisions of the prior planning regulation, but chooses to allow for an objection rather than an administrative appeal, the objection process in subpart B of this part shall apply. When the responsible official chooses to conform an ongoing planning process to this part, public notice must be made (§ 219.16(a)(5)). An objection process may be chosen only if the public is provided the opportunity to comment on a proposed plan, plan amendment, or plan revision, and associated environmental analysis.

7. In § 219.19 revise the definitions of Collaboration or collaborative process and Connectivity, revise paragraph (4) of the definition of Ecosystem services, and revise the definition of Source water protection areas to read as follows:§ 219.19 Definitions.

Collaboration or collaborative process. A structured manner in which a collection of people with diverse interests share knowledge, ideas, and resources while working together in an inclusive and cooperative manner toward a common purpose. Collaboration, in the context of this part, falls within the full spectrum of public engagement described in the Council on Environmental Quality's publication of October 2007: Collaboration in NEPA—A Handbook for NEPA Practitioners.

Connectivity. Ecological conditions that exist at several spatial and temporal scales that provide landscape linkages that permit the exchange of flow, sediments, and nutrients; the daily and seasonal movements of animals within home ranges; the dispersal and genetic interchange between populations; and the long-distance range shifts of species, such as in response to climate change.

Source water protection areas. The area delineated by a State or Tribe for a public water system (PWS) or including numerous PWSs, whether the source is ground water or surface water or both, as part of a State or tribal source water assessment and protection program (SWAP) approved by the Environmental Protection Agency under section 1453 of the Safe Drinking Water Act (42 U.S.C. 300h-3(e)).

EPA is taking direct final action to approve revisions to the Maryland State Implementation Plan (SIP) submitted by the Maryland Department of the Environment (MDE) on June 30, 2009. The revisions amend the visible emissions requirements of the Maryland SIP's regulation for the Control of Iron and Steel Production Installations only as they apply to sintering plants. The sintering plant located at the Sparrows Point steelmaking facility (Sparrows Point) is the only sintering plant located in the State of Maryland. The revisions exempt the sintering plant from the visible emissions section of the regulation for the Control of Iron and Steel Production Installations contingent upon the source's two wet scrubbers, used to control emissions of particulate matter, continuously monitoring compliance with specified pressure drop and flow rate operating parameters. EPA is approving these revisions because they provide for a continuous means of determining compliance with the applicable SIP emission rate for particulate matter from the sintering plant located at Sparrows Point, and because that emission rate has been demonstrated to protect and maintain the National Ambient Air Quality Standards (NAAQS) for PM10 (particulate matter consisting of particles with an aerodynamic diameter less than or equal to 10 micrometers). EPA is approving these revisions in accordance with the requirements of the Clean Air Act (CAA).

DATES:

This rule is effective on September 25, 2012 without further notice, unless EPA receives adverse written comment by August 27, 2012. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0272 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0272. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

On June 30, 2009, MDE submitted formal revisions (#09-02) to its SIP. The SIP revisions consist of amendments to Regulation .03 Visible Emissions under (Code of Maryland administrative regulations) COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply only to sintering plants. There is only one sintering plant located in Maryland. The one sintering plant affected by this regulation is located at Sparrows Point. Its particulate matter emissions are controlled by two wet (water) scrubbers each equipped with two fans. Under the current Maryland SIP, this sintering plant is subject to visible emissions and particulate matter standards. The current SIP requires that after demonstrating compliance with the applicable SIP particulate matter emission rate for sintering plants, a person may not cause or permit the discharge of visible fugitive emissions into the outdoor atmosphere, other than water in an uncombined form, which is greater than 10 percent opacity as averaged over any consecutive 6-minute period. The sintering plant's applicable SIP emission rate for particulate matter is 0.03 grains per dry standard cubic foot (gr/dscf).

The visible emissions standards for sintering plants found in Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations was originally established to allow the use of a Method 9 observation test as additional means of determining compliance, in addition to stack testing, with the sintering plant's applicable SIP particulate matter emission rate of .03 gr/dscf. In 2007, MDE amended Regulation .03 Visible Emissions under COMAR 26.11.10 to exempt the sintering plant at Sparrows Point from the visible emissions requirement and to establish open-ended requirements for the scrubbers' flow rates and pressure drops. Under the 2007 version of the regulation, MDE intended to establish specific flow rate and pressure drop parameters during a future stack test and to include them in the Title V permit for the sintering plant located at Sparrows Point. Upon further consideration, the MDE concurred with EPA that the SIP must stand on its own to protect the NAAQS, and that such open-ended requirements were not appropriate for inclusion in the SIP. Therefore, effective as of June 29, 2009, MDE again amended Regulation .03 under COMAR 26.11.10 to require that the two scrubbers of the sintering plant located at Sparrows Point meet specific flow rate and pressure drop parameters at all times under defined specific operating scenarios. During a stack test that demonstrated compliance with the SIP's applicable particulate matter emission rate of .03 gr/dscf, the flow rates and pressure drops of the two scrubbers were continuously monitored. Specific flow rate (in gallons per minute) and pressure drop (in inches of water) parameters for the scrubbers, established from the parameters monitored during the complying stack test, are now specified in the amended version of Regulation .03 under COMAR 26.11.10. Therefore, under the 2009 amended version of the regulation, the sintering plant at Sparrows Point is exempt from the visible emissions requirement of Regulation .03 under COMAR 26.11.10 when demonstrating compliance with the SIP's applicable particulate matter emission limit of 0.03 gr/dscf by continuously monitoring the flow rate and pressure drop parameters of the scrubbers and by providing that monitoring data to MDE. This monitoring data must demonstrate that the scrubbers are meeting the flow rate and pressure drop parameters which are now specifically included in the amended version of Regulation .03 under COMAR 26.11.10. Under Regulation .03 of COMAR 26.11.10, the exemption from the visible emissions requirement is contingent upon the sintering plant scrubbers operating in compliance with the conditions of subsection D. of the regulation which specifies the pressure drop and flow rate parameters established as previously described. The regulation also requires stack testing to be performed every 2.5 years.

Modeling has been performed in support of this SIP revision to demonstrate that the SIP's 0.03 gr/dscf applicable emission rate for particulate matter is protective of the NAAQS for PM10, and that protection is not dependent upon the visible emissions standard. A description of the modeling analyses conducted by MDE and the results are included in MDE's June 30, 2009 SIP revision submittal which is in the docket of this rulemaking. No SIP particulate matter emission rate relaxations are being approved as part of this SIP revision.

II. Summary of SIP Revision

Regulation .03 Visible Emissions under COMAR 26.11.10, at subsection A. General, (2) Exceptions, paragraph (f) has been amended to exempt visible emissions from sintering plant scrubbers that are in compliance with the conditions of subsection D. of the regulation. Regulation .03 under COMAR 26.11.10 has been amended to revise subsection D. to require:

(1) The owner or operator of the sintering plant shall ensure continuous compliance with the .03 gr/dscf applicable particulate matter emission rate by maintaining the hourly average scrubber pressure drop and water flow rate to each of the two scrubbers (referred to as Scrubber North and Scrubber South) as follows:

(2) Scrubber Operating Conditions and Requirements.

Operating conditionsPressure drop

(inches of water)

NorthSouthWater flow rate

(gallons per minute)

NorthSouth2 scrubbers each with 2 fans33393,7963,7182 scrubbers each with a wind box fan 23 32 3,679 3,705 North scrubber with 2 fans and South scrubber with a wind box fan 33 32 3,710 3,818 South scrubber with 2 fans and North scrubber with a wind box fan 32 33 3,818 3,710 North scrubber with 2 fans 33 3,488 South scrubber with 2 fans 33 3,488

(3) One or more of the scrubbers be in operation while the sintering plant is in operation.

(4) Compliance with the 0.03 gr/dscf emission limit requirement for particulate matter is achieved if at any time the hourly block average of scrubber pressure drop and flow rate are not less than the values in D(2) of this regulation.

(5) The scrubber pressure drop and flow rate shall be monitored by a continuous monitoring system and the monitoring system data made available to MDE upon request.

(6) Stack Testing Requirements.

(a) The affected sintering plant shall be stack tested for particulate matter not less than once each 2.5 years. During a compliance stack test, the scrubber pressure drop and flow rate shall be recorded as hourly block averages.

(b) If the scrubber pressure drop and water flow rate determined during a compliance stack test differ from the values in D(2) of this regulation, the owner or operator may request that MDE change to the values in D(2) of this regulation to reflect the revised values.

(c) Upon receiving such a request, the MDE may propose amending the regulation to include the revised values. Any amendment shall be submitted to the EPA as a SIP revision.

EPA has determined that these revisions to Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply to the sintering plant located at Sparrows Point are approvable because they provide for a continuous means of determining compliance with SIP's applicable particulate matter emission limit of 0.03 gr/dscf which has been demonstrated to protect and maintain the NAAQS for PM10.

III. Final Action

EPA is approving the SIP revisions to Regulation .03 Visible Emissions under COMAR 26.11.10 submitted by MDE on June 30, 2009. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 25, 2012 without further notice unless EPA receives adverse comment by August 27, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

IV. Statutory and Executive Order Reviews A. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action to approve a revision to Regulation .03 Visible Emissions under COMAR 26.11.10 Control of Iron and Steel Production Installations as they apply to sintering plants may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

EPA is taking direct final action to approve a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia. This revision removes four internal State administrative requirements from the Virginia SIP regulations for the control of motor vehicle emissions in the Northern Virginia Area. This action is being taken under the Clean Air Act (CAA).

DATES:

This rule is effective on September 25, 2012 without further notice, unless EPA receives adverse written comment by August 27, 2012. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0443 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0443. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814-2108, or by email at frankford.harold@epa.gov.

SUPPLEMENTARY INFORMATION:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On April 19, 2012, the Virginia Department of Environmental Quality (DEQ) submitted a revision to its State Implementation Plan (SIP).

I. Summary of SIP Revision

The revision consists of the removal of four administrative regulations from SIP-approved regulations 9VAC5 Chapter 91 (Regulation for the Control of Motor Vehicle Emissions in the Northern Virginia Area) pertaining to the establishment of regulations (Regulation 5-91-40), hearings and proceedings (Regulation 5-91-60), variances (Regulation 5-91-80), and procedural information and guidance (Regulation 5-91-110). Virginia has already repealed these four regulations from the State-enforceable version of 9VAC5, Chapter 91. However, Virginia has indicated in its SIP revision submittal that the regulations being removed from Chapter 91 do exist in the State-enforceable 9VAC5 Chapter 170 entitled Regulation for General Administration.

II. EPA Evaluation

EPA has determined that these administrative regulations need not be included in the Virginia SIP, as they describe internal State administrative procedures, and have no specific relationship to any pollutant control strategy under the CAA. While the CAA does require public hearings to be held on prospective SIP revisions, such requirements are found in 40 CFR 51.102. Similarly, in cases where Virginia grants variances of significant duration, the DEQ must submit such variances to EPA as separate SIP revisions.

III. General Information Pertaining to SIP Submittals from the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

IV. Final Action

EPA is approving the removal of Regulations 5-91-40, 5-91-60, 5-91-80, and 5-91-110 from the Virginia SIP, as requested by the Virginia DEQ on April 19, 2012. EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 25, 2012 without further notice unless EPA receives adverse comment by August 27, 2012. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

V. Statutory and Executive Order Reviews A. General Requirements

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

B. Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 25, 2012. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

This action to remove four internal administrative requirements from the regulation for the control of motor vehicle emissions in the Northern Virginia Area may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This regulation establishes an exemption from the requirement of a tolerance for residues of titanium dioxide (CAS Reg. No. 13463-67-7) when used as an inert ingredient (Ultraviolet-stabilizer) (UV), at no more than 5% in pesticide formulations containing the active ingredient napropamide, used in or on growing crops. United Phosphorus, Inc. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an amendment to an existing requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of titanium dioxide.

DATES:

This regulation is effective July 27, 2012. Objections and requests for hearings must be received on or before September 25, 2012, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

ADDRESSES:

The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2011-0829, is available at http://www.regulations.gov or at the OPP Docket in the Environmental Protection Agency Docket Center (EPA/DC), located in EPA West, Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

SUPPLEMENTARY INFORMATION:I. General InformationA. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

B. How can I get electronic access to other related information?

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

C. How can I file an objection or hearing request?

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-0829 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before September 25, 2012. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing that does not contain any CBI for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit a copy of your non-CBI objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-0829, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statue.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.htm.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

II. Petition for Exemption

In the Federal Register of November 9, 2011 (76 FR 69692) (FRL-9325-1), EPA issued a notice pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP 1E7918) by United Phosphorus, Inc., 630 Freedom Business Center, Suite 402, King of Prussia, PA 19406. The petition requested that 40 CFR 180.1195 be amended by modifying an exemption from the requirement of a tolerance for residues of titanium dioxide (CAS Reg. No. 13463-67-7) when used as an inert ingredient, UV-stabilizer, at no more than 5% in pesticide formulations containing the active ingredient napropamide. That notice referenced a summary of the petition prepared by United Phosphorus, Inc., the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

III. Inert Ingredient Definition

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

IV. Aggregate Risk Assessment and Determination of Safety

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. * * *”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for titanium dioxide including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with titanium dioxide follows.

A. Toxicological Profile

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by titanium dioxide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

A substantial proportion of the toxicity data provided in this unit has been taken from comprehensive reviews and publications from The International Agency for Research on Cancer (IARC), World Health Organization (WHO) and National Cancer Institute (NCI). The titanium dioxide acute toxicity studies show low toxicity near limit doses. Titanium dioxide is also not a skin sensitizer. A 28-day lung instillation studies demonstrated slight fibrogenic effects comparable to that of a nuisance dust. A 90-day lung instillation study showed statistically significant signs of inflammation immediately after exposure but they were absent after 1-month. Many subchronic and chronic oral toxicity studies were performed on different species including rats, mice, dogs, cats, rabbits and guinea pigs. The doses ranged up to 100,000 parts per million (ppm) (5,000 milligrams/kilograms/day (mg/kg/day)) with study durations up to 2 years. None of these studies showed mortality or adverse toxicological effects caused by titanium dioxide. No reproductive or developmental studies were available for review in the toxicity database. Mutagenicity studies including sister chromatid exchange assays, in vitro micronucleus assays, comet assays, reverse mutation tests and chromosome aberration test produced mixed results but overall these tests showed that titanium dioxide is not mutagenic. Titanium dioxide is not carcinogenic via the oral, intraperitoneal or subcutaneous routes of exposure in rats or mice; however, there is concern via the inhalation route. In inhalation studies, tumors present in the lungs are thought to have been a localized fibrogenic effect caused by overloading of the lungs with high concentrations of titanium dioxide particles over a prolonged period of time. The concentrations used in these studies are near limit dose levels. Actual environmentally anticipated exposures of titanium dioxide based on the use patterns of products that would contain titanium dioxide are orders of magnitude less than that allowed by the Occupational Safety and Health Administration's (OSHA) Permissible Exposure Limit (PEL). Specific information on the studies received and the nature of the adverse effects caused by titanium dioxide can be found at http://www.regulations.gov in the document “Titanium Dioxide (TiO2). Risk Assessment to Support Proposed Amendment to Exemption from the Requirement of a Tolerance When used as an Inert Ingredient in Pesticide Formulations under 40 CFR 180.1195,” in docket ID number EPA-HQ-OPP-2011-0829.

B. Toxicological Points of Departure/Levels of Concern

The available toxicity studies on titanium dioxide via oral route of exposure clearly demonstrate lack of toxicity. The several studies in mice, rats, dogs, cats, rabbits and other species of varying durations do not indicate toxicity at very high doses (e.g., 50,000 ppm or 2,500 mg/kg/day dietary exposure for 2 years in rats). No end point of concern via oral route of exposure has been identified in the available database. Therefore, dietary exposure was not estimated. This conclusion is in agreement with the conclusion of the WHO Committee on Food Coloring Materials that no Acceptable Daily Intake (ADI) need be set for the use of titanium dioxide based on the range of acute, sub-acute and chronic toxicity assays, all showing low mammalian toxicity. Similarly, no significant toxicity of titanium dioxide is expected via the dermal route of exposure. The available inhalation studies indicate that the primary toxicity of titanium dioxide is due to deposition of the inhaled particles and also suggest equivocal evidence of carcinogenicity due to prolonged exposure to titanium dioxide particles. No direct exposure to titanium dioxide particles is expected in pesticide napropamide formulations (less than 5% in formulations).

C. Exposure Assessment

1. Dietary exposure from food and feed uses and drinking water. In evaluating dietary exposure to titanium dioxide, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from titanium dioxide in food as follows:

An exposure assessment for titanium dioxide was not conducted because no endpoint of concern was identified in the database.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). Based on the use pattern provided by the registrant and use limitations/restrictions there are no residential uses and thus no residential exposures are expected.

3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found titanium dioxide to share a common mechanism of toxicity with any other substances, and titanium dioxide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that titanium dioxide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

D. Safety Factor for Infants and Children

In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

There were no significant hazards identified in the available data at levels at or below the limit dose of 1,000 mg/kg/day. Thus, due to its low potential hazard and the lack of a hazard endpoint, it was determined that a quantitative risk assessment using safety factors applied to a point of departure protective of an identified hazard endpoint is not appropriate for titanium dioxide. For the same reasons that a quantitative risk assessment based on a safety factor approach is not appropriate for titanium dioxide, an FQPA SF is not needed to protect the safety of infants and children.

E. Aggregate Risks and Determination of Safety

Titanium dioxide has two exemptions from the requirement of a tolerance: pesticide formulations applied to growing crops, 40 CFR 180.920; and pesticide formulations applied to animals, 40 CFR 180.930. Titanium dioxide is also approved for use as a colorant in food (21 CFR 73.575), in drugs (21 CFR 73.1575), and in cosmetics (21 CFR 73.2575; 21 CFR 73.3126). There has also been a previous exemption from requirement of a tolerance for residues in or on growing crops, when used as an inert ingredient (UV protectant) in microencapsulated formulations of the insecticide lambda-cyhalothrin at no more than 3.0% by weight or the formulations (40 CFR 180.1195). There was also no aggregate risk assessments performed since there was no single exposure, dietary or drinking water endpoints of concern.

Taking into consideration all available information on titanium dioxide, EPA has determined that there is a reasonable certainty that no harm to any population subgroup, including infants and children, will result from aggregate exposure to titanium dioxide under reasonable foreseeable circumstances. Therefore, the establishment of an exemption from tolerance under 40 CFR 180.1195 for residues of titanium dioxide when used as an inert ingredient (UV stabilizer) in pesticide formulations of napropamide at no more than 5% of the product formulation is considered safe under FFDCA section 408.

V. Other ConsiderationsA. Analytical Enforcement Methodology

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

B. International Residue Limits

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nation Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for titanium dioxide.

VI. Conclusions

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.1195 for titanium dioxide (CAS Reg. No.13463-67-7) when used as an inert ingredient (UV-stabilizer) at no more than 5% in pesticide formulations containing the active ingredient napropamide in pesticide formulations.

VII. Statutory and Executive Order Reviews

This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) do not apply.

This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note).

VIII. Congressional Review Act

The Congressional Review Act, 5 U.S.C. 801 et seq., generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of this final rule in the Federal Register. This final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

Titanium dioxide (CAS Reg. No. 13463-67-7) is exempted from the requirement of a tolerance for residues in or on growing crops, when used as an inert ingredient (UV protectant) in microencapsulated formulations of the insecticide lambda cyhalothrin at no more than 3.0% by weight of the formulation and as an inert ingredient (UV-stabilizer) at no more than 5% in pesticide formulations containing the active ingredient napropamide.

The Bureau of Land Management (BLM) is issuing this rule to amend regulations on locating, recording, and maintaining mining claims or sites. In this rule, the BLM amends its regulations to respond to a recent law that changes the way the maintenance fee is calculated for unpatented placer mining claims. The law specifies that the holder of an unpatented placer mining claim must pay the initial and annual maintenance fee for each 20 acres or portion thereof contained in the claim; and reiterates that an initial maintenance fee payment is due at the time of recording the claim with the BLM and that the annual maintenance fee is due on or before September 1 of each year.

DATES:

The interim final rule is effective July 27, 2012. If you wish to comment on the interim final rule, you should submit your comments by September 25, 2012.

Sonia Santillan at 202-912-7123, in the Solid Minerals Group as to program matters or the substance of the interim final rule or Ian Senio in the Division of Regulatory Affairs at 202-912-7440 for information relating to the rulemaking process generally. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week to contact the above individuals.

If you wish to comment, you may submit your comments by one of several methods:

You may mail comments to Director (630), Bureau of Land Management, U.S. Department of the Interior, 1849 C St. NW., Washington, DC 20240, Attention: 1004-AE27;

You may deliver comments to U.S. Department of the Interior, Bureau of Land Management, 20 M St. SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003; or

You may access and comment on the interim final rule at the Federal eRulemaking Portal by following the instructions at that site (see ADDRESSES).

Written comments on the interim final rule should be specific, should be confined to issues pertinent to the interim final rule, and should explain the reason for any recommended change. Where possible, comments should reference the specific section or paragraph of the proposal which the commenter is addressing.

The BLM need not consider, or include in the administrative record for the final rule, comments that the BLM receives after September 25, 2012 or comments delivered to an address other than those listed above.

Public Availability of Comments

Comments, including names, street addresses, and other contact information of respondents, will be available for public review at BLM's offices at the U.S. Department of the Interior, Bureau of Land Management, 20 M St. SE., Room 2134LM, Washington, DC 20003, during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except Federal holidays. They will also be available at the Federal eRulemaking Portal http://www.regulations.gov. Follow the instructions at this Web site.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

II. Background

The BLM has responsibility for the collection of fees for placer and lode mining claims and mill and tunnel sites on Federal lands. During fiscal year (FY) 2011, claimants recorded 58,775 new claims and sites with the BLM. In addition, the BLM processed maintenance fee payments for 375,958 claims and sites. The BLM deposits the collected fees into a special fund, and Congress appropriates money to the BLM from the fund to pay for the administration of the Mining Law program, which includes mining claim recording and fee collection, processing grandfathered patent applications, processing applications for plans of operations, inspecting operations, and enforcing the regulations.

Since 1992, Congress has passed several laws requiring claimants to pay various fees when locating, recording, and maintaining mining claims or sites on Federal lands. This rule implements Section 430 of the Consolidated Appropriations Act, 2012 (the FY2012 Appropriations Act), Public Law 112-74, 125 Stat. 786, enacted on December 23, 2011, which amended 30 U.S.C. 28f.

III. Discussion of Interim Final RuleWhy the Rule Is Being Published on an Interim Final Basis

The BLM is adopting this interim final rule solely to implement the requirements of Section 430 of the FY2012 Appropriations Act, which amended 30 U.S.C. 28f. The BLM is not making any other changes to the regulations at 43 CFR part 3830.

The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication. The reasons are as follows:

• This rule merely codifies statutorily imposed procedural changes;

• The law precludes the BLM from exercising discretion as to the level of fees or when they are due;

• Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims; and

• Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication. First, the matters addressed in the rule are statutorily required. Second, the payments this rule affects are payable to the BLM at the time of initial recording and annually thereafter. Because claims and sites are continuously being recorded with the BLM, this interim final rule serves as notification to all placer mining claim holders that they must begin paying the newly established fees upon recordation.

How the Rule Operates

Under previous law, initial and annual maintenance fee payments were the same amount for all placer claims, whether the placer mining claim was 20 acres or 160 acres (the maximum size allowed). This interim final rule specifies that for placer mining claims greater than 20 acres in size, the claimant must pay an additional fee for each 20 acres or portion thereof.

The fees under this rule are due for all existing placer mining claims, starting with the maintenance fee payment due on or before September 1, 2012, for the 2013 assessment year. For new placer mining claims, the rule is effective immediately and the fees under this rule are due when the placer claim is first recorded with the BLM as well as annually thereafter on or before September 1. For example, under this regulation, a claimant who records a new 66-acre placer mining claim must pay an initial maintenance fee of $560 ($140 for each of the first three 20-acre portions of the claim, plus $140 for the additional 6-acre portion thereof), as well as the $34 location fee (see 43 CFR 3830.21(a)(2)), and $15 processing fee (see 43 CFR 3000.12), for a total of $609. Each year, the annual maintenance fee for this hypothetical 66-acre placer claim would be $560.

IV. Procedural MattersRegulatory Planning and Review (Executive Order 12866 and Executive Order 13563)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. This interim final rule will not meet any of Executive Order 12866 criteria for significance as follows:

(a) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The economic analysis accompanying this rule indicates that the increase in fees for placer mining claims in excess of 20 acres will be approximately $8 million per year. The BLM makes this estimate on the basis of approximately 35,000 placer mining claims for which claimants paid maintenance fees at the end of FY 2011. Of these, approximately 21,000 placer mining claims exceeded 20 acres.

(b) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule only impacts the BLM's regulatory program by implementing a law that gives the BLM no discretion as to how to apply new fees for placer mining claims and will not affect actions taken or planned by another agency.

(c) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(d) This rule does not raise novel legal or policy issues. The rule simply implements a statute requiring fees for placer mining claims.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. This interim final rule has been developed in a manner consistent with these requirements.

Regulatory Flexibility Act

The BLM certifies that this interim final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule will not have an impact because the fees paid by small entities will not change sufficiently to cause a significant economic impact. Using Internal Revenue Service data from 2008, the BLM estimates that the average placer claimant that will be affected by this rulemaking will pay an extra $800 annually. This amount equals about one per cent of a claimant's average annual income in 2008, which was $77,311. Moreover, this rule does not change the small miner maintenance fee waiver program, which further reduces any potential impact on small miners. A final Regulatory Flexibility Analysis is not required, and a Small Entity Compliance Guide is not required.

For the purposes of this section, a “small entity” is an individual, limited partnership, or small company, at “arm's length” from the control of any parent companies, with fewer than 500 employees or less than $5 million in revenue. This definition is consistent with Small Business Administration regulations at 13 CFR 121.201. Please see the economic analysis at the address in the ADDRESSES section of this rule for additional information.

Small Business Regulatory Enforcement Fairness Act

This interim final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act.

• This rule does not have an annual effect on the economy of $100 million or more. The maintenance fee for placer mining claims is changing and will now be calculated based on the acreage of the claim. However, even with the additional maintenance fees collected for placer mining claims containing more than 20 acres, the annual effect on the economy will not meet or exceed $100 million. The total maintenance fee collected for placer mining claims that exceed 20 acres is being adjusted so that placer mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites;

• This rule does not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. The changes implemented by this rule are likely to leave all other economic aspects of the BLM Mining Law program unaffected; and

• This rule does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

• This interim final rule does not “significantly or uniquely” affect small governments and does not impact small government entities in any regard. A Small Government Agency Plan is unnecessary.

• This rule does not produce a Federal mandate of $100 million or greater in any year.

The rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act. The changes in this rule would not require anything of any non-Federal governmental entity.

Executive Order 12630, Takings

In accordance with Executive Order 12630, the BLM finds that the rule does not have takings implications. A takings implication assessment is not required. This rule does not substantially change BLM policy. Nothing in this rule constitutes a taking.

Executive Order 13132, Federalism

In accordance with Executive Order 12612, the BLM finds that this interim final rule does not have significant Federalism effects. A Federalism assessment is not required. This rule does not change the role of or responsibilities among Federal, State, and local governmental entities, nor does it relate to the structure and role of states or have direct, substantive, or significant effects on states.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, the BLM finds that this interim final rule does not include policies that have tribal implications. Because this rule does not make significant substantive changes in the regulations and does not specifically involve Indian reservation lands (which are closed to the operation of the Mining Law), the BLM finds that the rule will have no implications for Indians, Indian tribes, and tribal governments.

Executive Order 12988, Civil Justice Reform

In accordance with Executive Order 12988, the BLM finds that this interim final rule does not unduly burden the judicial system, and therefore meets the requirements of sections 3(a) and 3(b)(2) of the Order. The BLM consulted with the Department of the Interior's Office of the Solicitor throughout the drafting process.

Paperwork Reduction Act

The BLM has determined this interim final rule does not contain any new information collection requirements that the Office of Management and Budget (OMB) must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The OMB has approved the information collection requirements in the regulations under OMB control number 1004-0114 that pertain to the payment of mining claim recordation and maintenance fees.

National Environmental Policy Act (NEPA)

This interim final rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because this rule is administrative in nature and is covered by a categorical exclusion. This rule will result in no new surface disturbing activities and therefore will have no effect on ecological or cultural resources. In promulgating this rule, the government is conducting routine and continuing government business of an administrative nature having limited context and intensity. Therefore, it is categorically excluded from environmental review under section 102(2)(C) of NEPA, pursuant to 43 CFR 46.205. The rule does not meet any of the extraordinary circumstances criteria for categorical exclusions listed at 43 CFR 46.215. Under Council on Environmental Quality regulations (40 CFR 1508.4) and the environmental policies and procedures of the Department, the term “categorical exclusion” means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect on procedures adopted by a Federal agency and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.

This interim final rule is not a significant energy action. It will not have an adverse effect on energy supplies. The rule pertains primarily to non-energy minerals, and does not impose requirements that are not statutory or impose new requirements.

Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make this interim final rule easier to understand, including answers to questions such as the following:

1. Are the requirements in the regulations clearly stated?

2. Do the regulations contain technical language or jargon that interferes with their clarity?

3. Does the format of the regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

4. Would the regulations be easier to understand if they were divided into more (but shorter) sections?

5. Is the description of the regulations in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the proposed regulations? How could this description be more helpful in making the regulations easier to understand?

Please send any comments you have on the clarity of the regulations to the address as specified in the ADDRESSES section.

Author

The principal author of this interim final rule is Sonia Santillan in the Solid Minerals Group assisted by the Division of Regulatory Affairs, Washington Office, BLM.

Subpart D—BLM Service Charge and Fee Requirements2. Amend § 3830.21 by revising paragraphs (a) and (d) of the table to read as follows:§ 3830.21 What are the different types of service charges and fees?TransactionAmount due per mining claim or siteWaiver available(a) Recording a mining claim or site location (part 3833)A total sum which includes:

(1) The processing fee for notices of location found in the fee schedule in § 3000.12 of this chapter;

No.(2) A one-time $34 location fee; and(3)(i) For lode claims, mill sites and tunnel sites, an initial $140 maintenance fee; or(ii) For placer claims, an initial $140 maintenance fee for each 20 acres of the placer claim or portion thereof.* * * * * * *(d) Maintaining a mining claim or site for one assessment year (part 3834)(1) For lode claims, mill sites and tunnel sites, an annual maintenance fee of $140 must be paid on or before September 1 each year.Yes. See part 3835.(2) For placer claims, a $140 annual maintenance fee for each 20 acres of the placer claim or portion thereof must be paid on or before September 1 each year.* * * * * * *Marcilynn A. Burke,Acting Assistant Secretary, Land and Minerals Management.[FR Doc. 2012-18352 Filed 7-26-12; 8:45 am]BILLING CODE 4310-84-PDEPARTMENT OF TRANSPORTATIONSurface Transportation Board49 CFR Part 1002[Docket No. EP 542 (Sub-No. 20)]Fees for Services Performed in Connection With Licensing and Related Services—2012 UpdateAGENCY:

Surface Transportation Board, DOT.

ACTION:

Final rules.

SUMMARY:

The Board adopts its 2012 user-fee update and revises its fee schedule to reflect some increases to its full cost calculations, the result of no wage & salary increases given in January 2012, no change to publication costs from their 2011 levels, coupled with both increases and decreases to the Board's three overhead cost factors.

The Board's regulations at 49 CFR 1002.3 provide for an annual update of the Board's entire user-fee schedule. Fees are generally revised based on the cost study formula set forth at 49 CFR 1002.3(d). The fee changes adopted here, reflect a combination of the unchanged wage and salary costs from the 2011 User Fee Update decision; no change in publication costs; plus changes to the three Board overhead cost factors (two increased & one decreased from their comparable 2011 levels), resulting from the mechanical application of the update formula in 49 CFR 1002.3(d). Results from the formula application indicate that justified fee amounts in this 2012 update decision either remain unchanged (61 fee or sub-fee items) or increase (64 fee or sub-fee items) from their respective 2011 update levels. No new fee items are proposed in this proceeding. Therefore, the Board finds that notice and comment are unnecessary for this proceeding. See Regulations Governing Fees For Services—1990 Update, 7 I.C.C.2d 3 (1990); Regulations Governing Fees For Services—1991 Update, 8 I.C.C.2d 13 (1991); and Regulations Governing Fees For Services—1993 Update, 9 I.C.C.2d 855 (1993).

The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship.

Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at http://www.stb.dot.gov or call the Board's Information Officer at (202) 245-0245. [Assistance for the hearing impaired is available through Federal Information Relay Services (FIRS): (800) 877-8339.]

List of Subjects in 49 CFR Part 1002

Administrative practice and procedure, Common carriers, and Freedom of information.

Type of proceedingFeePART I: Non-Rail Applications or Proceedings to Enter Upon a Particular Financial Transaction or Joint Arrangement: (1) An application for the pooling or division of traffic$4,500 (2) (i) An application involving the purchase, lease, consolidation, merger, or acquisition of control of a motor carrier of passengers under 49 U.S.C. 143032,100 (ii) A petition for exemption under 49 U.S.C. 13541 (other than a rulemaking) filed by a non-rail carrier not otherwise covered3,300 (iii) A petition to revoke an exemption filed under 49 U.S.C. 13541(d)2,700 (3) An application for approval of a non-rail rate association agreement. 49 U.S.C. 1370328,400 (4) An application for approval of an amendment to a non-rail rate association agreement: (i) Significant amendment4,700 (ii) Minor amendment100 (5) An application for temporary authority to operate a motor carrier of passengers. 49 U.S.C. 14303(i)500 (6) A notice of exemption for transaction within a motor passenger corporate family that does not result in adverse changes in service levels, significant operational changes, or a change in the competitive balance with motor passenger carriers outside the corporate family1,700 (7)-(10) [Reserved].PART II: Rail Licensing Proceedings other than Abandonment or Discontinuance Proceedings: (11) (i) An application for a certificate authorizing the extension, acquisition, or operation of lines of railroad. 49 U.S.C. 109017,400 (ii) Notice of exemption under 49 CFR 115031-1150351,800 (iii) Petition for exemption under 49 U.S.C. 1050212,900 (12) (i) An application involving the construction of a rail line76,700 (ii) A notice of exemption involving construction of a rail line under 49 CFR 1150361,800 (iii) A petition for exemption under 49 U.S.C. 10502 involving construction of a rail line76,700 (iv) A request for determination of a dispute involving a rail construction that crosses the line of another carrier under 49 U.S.C. 10902(d)250 (13) A Feeder Line Development Program application filed under 49 U.S.C. 10907(b)(1)(A)(i) or 10907(b)(1)(A)(ii)2,600 (14) (i) An application of a class II or class III carrier to acquire an extended or additional rail line under 49 U.S.C. 10902.6,300 (ii) Notice of exemption under 49 CFR 115041-1150451,800 (iii) Petition for exemption under 49 U.S.C. 10502 relating to an exemption from the provisions of 49 U.S.C. 109026,800 (15) A notice of a modified certificate of public convenience and necessity under 49 CFR 115021-1150241,700 (16) An application for a land-use-exemption permit for a facility existing as of October 16, 2008 under 49 U.S.C. 109096,200 (17) An application for a land-use-exemption permit for a facility not existing as of October 16, 2008 under 49 U.S.C. 1090921,700 (18)-(20) [Reserved].PART III: Rail Abandonment or Discontinuance of Transportation Services Proceedings: (21) (i) An application for authority to abandon all or a portion of a line of railroad or discontinue operation thereof filed by a railroad (except applications filed by Consolidated Rail Corporation pursuant to the Northeast Rail Service Act [Subtitle E of Title XI of Pub. L. 97-35], bankrupt railroads, or exempt abandonments)22,800 (ii) Notice of an exempt abandonment or discontinuance under 49 CFR 1152.503,700 (iii) A petition for exemption under 49 U.S.C. 105026,500 (22) An application for authority to abandon all or a portion of a line of a railroad or operation thereof filed by Consolidated Rail Corporation pursuant to Northeast Rail Service Act.450 (23) Abandonments filed by bankrupt railroads1,900 (24) A request for waiver of filing requirements for abandonment application proceedings1,800 (25) An offer of financial assistance under 49 U.S.C. 10904 relating to the purchase of or subsidy for a rail line proposed for abandonment1,600 (26) A request to set terms and conditions for the sale of or subsidy for a rail line proposed to be abandoned23,300 (27) (i) A request for a trail use condition in an abandonment proceeding under 16 U.S.C.1247(d)250 (ii) A request to extend the period to negotiate a trail use agreement450 (28)-(35) [Reserved].PART IV: Rail Applications to Enter Upon a Particular Financial Transaction or Joint Arrangement: (36) An application for use of terminal facilities or other applications under 49 U.S.C. 1110219,400 (37) An application for the pooling or division of traffic. 49 U.S.C. 1132210,500 (38) An application for two or more carriers to consolidate or merge their properties or franchises (or a part thereof) into one corporation for ownership, management, and operation of the properties previously in separate ownership. 49 U.S.C. 11324: (i) Major transaction1,533,500 (ii) Significant transaction306,700 (iii) Minor transaction7,600 (iv) Notice of an exempt transaction under 49 CFR 11802(d)1,700 (v) Responsive application7,600 (vi) Petition for exemption under 49 U.S.C. 105029,600 (vii) A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 11802(a)5,600 (39) An application of a non-carrier to acquire control of two or more carriers through ownership of stock or otherwise. 49 U.S.C. 11324: (i) Major transaction1,533,500 (ii) Significant transaction306,700 (iii) Minor transaction7,600 (iv) A notice of an exempt transaction under 49 CFR 11802(d)1,300 (v) Responsive application7,600 (vi) Petition for exemption under 49 U.S.C. 105029,600 (vii) A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 11802(a)5,600 (40) An application to acquire trackage rights over, joint ownership in, or joint use of any railroad lines owned and operated by any other carrier and terminals incidental thereto. 49 U.S.C. 11324: (i) Major transaction1,533,500 (ii) Significant transaction306,700 (iii) Minor transaction7,600 (iv) Notice of an exempt transaction under 49 CFR 11802(d)1,200 (v) Responsive application7,600 (vi) Petition for exemption under 49 U.S.C. 105029,600 (vii) A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 11802(a)5,600 (41) An application of a carrier or carriers to purchase, lease, or contract to operate the properties of another, or to acquire control of another by purchase of stock or otherwise. 49 U.S.C. 11324: (i) Major transaction1,533,500 (ii) Significant transaction306,700 (iii) Minor transaction7,600 (iv) Notice of an exempt transaction under 49 CFR 11802(d)1,400(v) Responsive application7,600 (vi) Petition for exemption under 49 U.S.C. 105026,800 (vii) A request for waiver or clarification of regulations filed in a major financial proceeding as defined at 49 CFR 11802(a)5,600 (42) Notice of a joint project involving relocation of a rail line under 49 CFR 11802(d)(5)2,400 (43) An application for approval of a rail rate association agreement. 49 U.S.C. 1070671,800 (44) An application for approval of an amendment to a rail rate association agreement. 49 U.S.C. 10706: (i) Significant amendment13,300 (ii) Minor amendment100 (45) An application for authority to hold a position as officer or director under 49 U.S.C. 11328800 (46) A petition for exemption under 49 U.S.C. 10502 (other than a rulemaking) filed by rail carrier not otherwise covered8,200 (47) National Railroad Passenger Corporation (Amtrak) conveyance proceeding under 45 U.S.C. 562250 (48) National Railroad Passenger Corporation (Amtrak) compensation proceeding under Section 402(a) of the Rail Passenger Service Act250 (49)-(55) [Reserved].PART V: Formal Proceedings: (56) A formal complaint alleging unlawful rates or practices of carriers: (i) A formal complaint filed under the coal rate guidelines (Stand-Alone Cost Methodology) alleging unlawful rates and/or practices of rail carriers under 49 U.S.C. 10704(c)(1)350 (ii) A formal complaint involving rail maximum rates filed under the Simplified-SAC methodology 350 (iii) A formal complaint involving rail maximum rates filed under the Three Benchmark methodology150 (iv) All other formal complaints (except competitive access complaints)350 (v) Competitive access complaints150 (vi) A request for an order compelling a rail carrier to establish a common carrier rate250 (57) A complaint seeking or a petition requesting institution of an investigation seeking the prescription or division of joint rates or charges. 49 U.S.C. 10705 9,100 (58) A petition for declaratory order: (i) A petition for declaratory order involving a dispute over an existing rate or practice which is comparable to a complaint proceeding1,000 (ii) All other petitions for declaratory order1,400 (59) An application for shipper antitrust immunity. 49 U.S.C. 10706(a)(5)(A)7,200 (60) Labor arbitration proceedings250 (61) (i) An appeal of a Surface Transportation Board decision on the merits or petition to revoke an exemption pursuant to 49 U.S.C. 10502(d)250(ii) An appeal of a Surface Transportation Board decision on procedural matters except discovery rulings350 (62) Motor carrier undercharge proceedings250 (63) (i) Expedited relief for service inadequacies: A request for expedited relief under 49 U.S.C. 11123 and 49 CFR part 1146 for service emergency250 (ii) Expedited relief for service inadequacies: A request for temporary relief under 49 U.S.C. 10705 and 11102, and 49 CFR part 1147 for service inadequacy250 (64) A request for waiver or clarification of regulations except one filed in an abandonment or discontinuance proceeding, or in a major financial proceeding as defined at 49 CFR 11802(a)600 (65)-(75) [Reserved].PART VI: Informal Proceedings: (76) An application for authority to establish released value rates or ratings for motor carriers and freight forwarders of household goods under 49 U.S.C. 147061,200 (77) An application for special permission for short notice or the waiver of other tariff publishing requirements100 (78) The filing of tariffs, including supplements, or contract summaries1 per page. (25 min. charge.) (79) Special docket applications from rail and water carriers: (i) Applications involving $25,000 or less75 (ii) Applications involving over $25,000150 (80) Informal complaint about rail rate applications600 (81) Tariff reconciliation petitions from motor common carriers: (i) Petitions involving $25,000 or less75 (ii) Petitions involving over $25,000150 (82) Request for a determination of the applicability or reasonableness of motor carrier rates under 49 U.S.C. 13710(a)(2) and (3)250 (83) Filing of documents for recordation. 49 U.S.C. 11301 and 49 CFR 1177.3(c).$42 per document.(84) Informal opinions about rate applications (all modes)250 (85) A railroad accounting interpretation1,100 (86) (i) A request for an informal opinion not otherwise covered1,500 (ii) A proposal to use on a voting trust agreement pursuant to 49 CFR part 1013 and 49 CFR 11804(b)(4)(iv) in connection with a major control proceeding as defined at 49 CFR 11802(a)5,200 (iii) A request for an informal opinion on a voting trust agreement pursuant to 49 CFR 1013.3(a) not otherwise covered500 (87) Arbitration of Certain Disputes Subject to the Statutory Jurisdiction of the Surface Transportation Board under 49 CFR part 1108: (i) Complaint75 (ii) Answer (per defendant), Unless Declining to Submit to Any Arbitration75 (iii) Third Party Complaint75 (iv) Third Party Answer (per defendant), Unless Declining to Submit to Any Arbitration75 (v) Appeals of Arbitration Decisions or Petitions to Modify or Vacate an Arbitration Award150 (88) Basic fee for STB adjudicatory services not otherwise covered250 (89)-(95) [Reserved]PART VII: Services: (96) Messenger delivery of decision to a railroad carrier's Washington, DC, agent33 per delivery. (97) Request for service or pleading list for proceedings25 per list. (98) Processing the paperwork related to a request for the Carload Waybill Sample to be used in a Surface Transportation Board or State proceeding that: (i) Does not require a Federal Register notice: (a) Set cost portion150 (b) Sliding cost portion$48 per party. (ii) Does require a Federal Register notice: (a) Set cost portion400 (b) Sliding cost portion$48 per party. (99) (i) Application fee for the Surface Transportation Board's Practitioners' Exam150 (ii) Practitioners' Exam Information Package25 (100) Carload Waybill Sample data: (i) Requests for Public Use File for all years prior to the most current year Carload Waybill Sample data available, provided on CD-R$250 per year. (ii) Specialized programming for Waybill requests to the Board$112 per hour.[FR Doc. 2012-17923 Filed 7-26-12; 8:45 am]BILLING CODE 4915-01-PDEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 120306154-2241-02] RIN 0648-XA920 Atlantic Highly Migratory Species; 2012 Atlantic Bluefin Tuna Quota Specifications AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS establishes 2012 quota specifications for the Atlantic bluefin tuna (BFT) fisheries. This action is necessary to implement binding recommendations of the International Commission for the Conservation of Atlantic Tunas (ICCAT), as required by the Atlantic Tunas Convention Act (ATCA), and to achieve domestic management objectives under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

DATES:

Effective August 27, 2012 through December 31, 2012.

ADDRESSES:

Supporting documents, including the 2011 Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis, as well as others, such as the Fishery Management Plans and the scoping document described below may be downloaded from the HMS Web site at www.nmfs.noaa.gov/sfa/hms/. These documents also are available by request to Sarah McLaughlin at the telephone number below.

FOR FURTHER INFORMATION CONTACT:

Sarah McLaughlin or Brad McHale, 978-281-9260.

SUPPLEMENTARY INFORMATION:

Atlantic bluefin tuna (BFT) are managed under the dual authority of the Magnuson-Stevens Act and ATCA. The United States is an active member of ICCAT, which implements binding conservation and management recommendations for species including bluefin tuna. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate, to implement ICCAT recommendations. The authority to issue regulations under the Magnuson-Stevens Act and ATCA has been delegated from the Secretary to the Assistant Administrator for Fisheries, NMFS.

Background

ICCAT Recommendation 10-03 (Supplemental Recommendation by ICCAT concerning Western Atlantic Bluefin Tuna) established the total allowable catch for western Atlantic bluefin tuna for 2011 and 2012, including the United States' bluefin tuna quota. Through a final rule (76 FR 39019, July 5, 2011), NMFS implemented the United States' baseline quota and set domestic BFT fishing category quotas per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (Consolidated HMS FMP) and as allowed in implementing regulations (71 FR 58058, October 2, 2006) (See Table 1, first column). The baseline quota and category subquotas are codified (See Table 1, second column) and will be effective until changed. Additionally, consistent with the Consolidated HMS FMP and NMFS implementing regulations, and as allowed by ICCAT recommendation, certain adjustments are made to the baseline quotas for underharvest from the previous year. This final action adjusts the quota as appropriate and allowable for the 2012 fishing year. Further background information, including the need for the 2012 BFT quota specifications, was provided in the preamble to the proposed rule (77 FR 15712, March 16, 2012) and is not repeated here.

Changes From the Proposed Rule

NMFS determines the amount of BFT quota actually available for the year by adjusting the ICCAT-recommended baseline BFT quota for overharvest or underharvest from the previous fishing year and any accounting for dead discards. At the time the proposed rule was prepared, NMFS used the 2010 estimate of 122.3 mt as a proxy for potential 2012 dead discards because the BFT dead discard estimate for 2011 was not yet available. The more recent 2011 dead discard estimate, 145.2 mt, became available from the NMFS Southeast Fisheries Science Center in mid-June 2012. As anticipated and explained to the public at the proposed rule stage, NMFS is using the more recent dead discard estimate as a proxy in this final rule because it is the best available and most complete information NMFS currently has regarding dead discards.

Based on data available as of June 5, 2012, landings for 2011 totaled 738.5 mt. Adding the 2011 dead discard estimate (145.2 mt) results in a preliminary 2011 total catch of 883.7 mt, which is 159.9 mt less than the amount of quota (inclusive of dead discards) allowed under ICCAT Recommendation 10-03 (948.7 mt plus 94.9 mt of 2010 underharvest carried forward to 2011, totaling 1,043.6 mt). Thus, the underharvest for 2011 is approximately 160 mt. The current ICCAT recommendation limits the amount of underharvest the United States may carry forward to 2012 to 10 percent of the total U.S. quota or 94.9 mt.

As proposed, NMFS is accounting up front (i.e., at the beginning of the fishing year) for half of the expected dead discards for 2012, using the best available estimate of dead discards (2011), and deducting that portion directly from the Longline category subquota. This is the same approach that NMFS took for the final 2011 BFT quota specifications. Accounting for dead discards in the Longline category in this way may provide further incentive for pelagic longline fishermen to reduce interactions that can result in dead discards.

Regarding the unharvested 2011 BFT quota, NMFS had proposed to carry the 94.9 mt of available underharvest forward to 2012 and distribute that amount in the same manner as specified for 2011 (i.e., half to the Longline category and half to the Reserve category), and stated that any necessary adjustments to the 2012 specifications would be made in the final rule after considering updated 2011 landings information and the 2011 dead discard estimate. NMFS also stated that it could allocate the amount carried forward in another manner after considering domestic management needs for 2012.

During preparation of the final rule, NMFS closed the southern area incidental Longline bluefin tuna fishery on May 29, 2012 (77 FR 31546), and the northern area incidental Longline bluefin tuna fishery on June 30, 2012 (77 FR 38011), for the remainder of the year, because landings had met the codified subquotas for those areas. While pelagic longline fishing for swordfish and other target species may continue in the northern and southern Longline areas (with the separation at 31° N. lat., around the Georgia/Florida border), BFT may no longer be retained, possessed, or landed by longline vessels in those areas. Given that the incidental Longline fishery for bluefin tuna in these areas is over, accounting for these landings now is appropriate and allows for greater transparency than year-end accounting. The incidental Longline fishery for bluefin tuna in the Northeast Distant gear restricted area, an area far offshore the northeastern United States, remains open at this time under a separate, ICCAT-recommended allocation of 25 mt.

Taking all of this information into consideration, NMFS is deducting half of the estimated dead discards up front, is applying 76.2 of the 94.9 mt (the available underharvest) to the Longline category, and is maintaining the remaining underharvest (18.7 mt) in the Reserve category. Providing this amount to the Longline category adjusts the Longline South and Longline North subquotas to the amount actually taken in those areas this year, as detailed below. Consistent with determination criteria at § 635.27(a)(8), NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any other quota category. In the proposed rule, NMFS anticipated the possibility of such moderate alterations between the proposed and final amounts and distribution, based on updated information and management objectives.

The incidental Longline fishery for bluefin tuna in the Northeast Distant gear restricted area, an area far offshore the northeastern United States, remains open at this time under a separate, ICCAT-recommended allocation of 25 mt.

2012 Quota Specifications

Specifically, NMFS in this final rule deducts half of the 2011 dead discard estimate of 145.2 mt (i.e., 72.6 mt) directly from the baseline Longline category quota of 74.8 mt and applies 76.2 of the 94.9 mt allowed to be carried forward to 2012 to the Longline category (i.e., 74.8 − 72.6 + 76.2 = 78.4 mt adjusted Longline subquota, not including the 25-mt allocation set aside by ICCAT for the Northeast Distant gear restricted area (NED)). NMFS adds the remainder of the 2011 underharvest that can be carried forward to 2012 (18.7 mt) to the Reserve category's baseline allocation of 23.1 mt, for an adjusted Reserve category quota of 41.8 mt for 2012. For the directed fishing categories (i.e., the Angling, General, Harpoon, Purse Seine categories) as well as the Trap category, NMFS is not adjusting the codified baseline BFT quotas and subquotas that were established in July 2011 (76 FR 39019, July 5, 2011).

Thus, in accordance with ICCAT Recommendation 10-03, the domestic category allocations established in the Consolidated HMS FMP, and regulations regarding annual adjustments at § 635.27(a)(10), NMFS establishes BFT quota specifications for the 2012 fishing year as follows, and as shown in the fifth column of Table 1): General category—435.1 mt; Harpoon category—36 mt; Purse Seine category—171.8 mt; Angling category—182 mt; Longline category—78.4 mt; and Trap category—0.9 mt. The Longline category quota of 78.4 mt is subdivided as follows: 27.6 mt to pelagic longline vessels landing BFT north of 31° N. latitude, and 50.8 mt to pelagic longline vessels landing BFT south of 31° N. latitude. NMFS accounts for landings under the 25-mt NED allocation separately from other Longline category landings. The amount allocated to the Reserve category for inseason adjustments, scientific research collection, potential overharvest in any category except the Purse Seine category, and potential quota transfers is 41.8 mt.

As described in the proposed rule, NMFS considers the deduction of half of the dead discard estimate from the Longline category a transitional approach from the method used for 2007 through 2010—in which the full dead discard estimate was deducted from the Longline category quota up front—that is appropriate to use again for 2012 as NMFS begins developing Amendment 7 to the Consolidated HMS FMP (Amendment 7) (77 FR 24161, April 23, 2012). Several potential management measures included in the Amendment 7 scoping document (see ADDRESSES) are intended to reduce and account for bluefin tuna dead discards. After public scoping on Amendment 7 has been completed, NMFS will prepare a draft Environmental Impact Statement and proposed rule. Management of the BFT fisheries continues under the current Consolidated HMS FMP, implementing regulations, and ICCAT recommendations.

NMFS received five written comments on the proposed rule, and oral comments from the 13 participants who attended the two public hearings that NMFS held in Gloucester, MA, and Silver Spring, MD. Few of the comments NMFS received were focused specifically on the proposed quota specifications. The majority of those comments generally supported the proposed adjustment of the baseline BFT quota and subquotas. Below, NMFS summarizes and responds to all comments made specifically on the proposed rule received during the comment period. In addition, NMFS received comments on issues that were not part of this rulemaking. These comments are summarized under “Other Issues” below. Finally, NMFS addresses a comment received after the end of the comment period from the Center for Biological Diversity, the Plaintiff in an ongoing legal case regarding bluefin tuna management.

A. 2012 Quota Specifications

Comment 1: One commenter stated that NMFS' proposed methodology to allocate the quotas is appropriate because it is the same methodology used in 2011 and it allows for continued participation by all of the fishery's user groups. Another stated that NMFS should hold each category directly accountable for its own overharvests.

Response: The approach used for these final 2012 quota specifications is an appropriate continuation of the approach used in 2011 as a transition from the method used from 2007 through 2010. Changes in ICCAT's approach to western Atlantic bluefin tuna management in 2006 (i.e., discontinuation of the dead discard allowance and a new provision that the western BFT Total Allowable Catch include dead discards) have had implications for NMFS's domestic management of the fishery quota subcategories, as now the total of U.S. landings and dead discards is limited by the U.S. quota. Through this interim approach, NMFS is balancing the needs of the pelagic longline fishery to continue fishing for swordfish and Atlantic tunas with the needs of directed bluefin tuna fisheries participants. This action may provide some incentive for pelagic longline fishermen to reduce BFT interactions that can result in dead discards. Regarding the comment that NMFS should hold each subcategory accountable for its own dead discard, at this time there are no estimates of dead discards in other categories upon which to hold them accountable. NMFS is considering how best to modify data collection programs to provide dead discard estimates in the future in Amendment 7.

Comment 2: One commenter requested that if, based on final 2011 dead discard information, the amount of 2011 underharvest that the United States could carry forward to 2012 is less than the amount anticipated in the proposed rule (94.9 mt), NMFS should deduct the difference from the Longline category quota. Another commenter requested that NMFS take any difference from the Reserve category quota and asked that NMFS not give out extra quota for directed fisheries to land as that could result in an overharvest of the U.S. BFT quota.

Response: Because final landings and dead discard information for 2011 indicates that the amount of 2011 underharvest is greater than 94.9 mt, the full 94.9 will be available as anticipated in the proposed rule, and no adjustment is necessary. Therefore, the question of how to divide a reduced amount of underharvest between the Longline category and the Reserve is moot. However, after considering the updated 2011 BFT landings information and final dead discard estimate, NMFS has decided to apply 76.2 of the 94.9 mt (the available underharvest) to the Longline category and maintain the remainder (18.7 mt) in the Reserve category.

Comment 3: One commenter expressed concern that NMFS may, in order to stay within the ICCAT-recommended U.S. quota, close directed BFT fisheries in the event that unused quota, including the Reserve quota, is insufficient to account for Longline category landings overharvests and dead discards.

Response: The United States must account for dead discards, regardless of which fishery they occur in, to comply with ICCAT recommendations. It is important to consider that the BFT quota allocations in the Consolidated HMS FMP were based on historic landings and were established initially in 1992. Baseline quotas were modified in 1995 and 1997, but have remained the same since implementation of the 1999 FMP, when a separate discard allowance was provided for in the ICCAT BFT recommendation. Following ICCAT's elimination of the dead discard allowance and change to include dead discards within TACs in 2006, NMFS has not modified the allocation scheme to include dead discards in the baseline quotas. The United States has accounted for this mortality as part of the domestic specification calculation process for the last several years and reports dead discard estimates to ICCAT annually. Regarding the concern about potential closure, NMFS manages each fishing category to its landings quota for a given year, and it is highly unlikely that NMFS would close a fishery prior to the available quota for that category being met.

As indicated above and below, through Amendment 7, NMFS is considering how best to reduce and account for BFT dead discards and methods to improve reporting and monitoring of discards and landings.

Comment 4: NMFS should add to the Reserve category quota the shares of the two purse seine vessels that historically have participated in the BFT Purse Seine category fishery but that have recently been sold and are involved in non-tuna fisheries.

Response: The current BFT quota regulations, which implement the allocation shares set out in the Consolidated HMS FMP, require that NMFS make equal allocations of the available Purse Seine category quota to the Purse Seine category permit holders that request allocation for a given fishing year (§ 635.27(a)(4)(iii)). Thus, current regulations do not allow NMFS to initially allocate the Purse Seine category quota the way the commenter requests. Any change to the procedures for initially allocating Purse Seine category quota would require amendment to the Consolidated HMS FMP. NMFS is currently in the scoping process of Amendment 7, with comments on the scoping document (see ADDRESSES) being accepted through July 15, 2012.

B. Other Issues

NMFS received comments on issues beyond the scope of this rulemaking, as outlined under seven subheadings below. NMFS has included several of these topics in the scoping document for Amendment 7. NMFS has also requested comments and/or suggestions on any of the Consolidated HMS FMP management objectives, as well as any potential management measures that may achieve those objectives so they can be incorporated for future public input. Potential management measures include, but are not limited to: revision of baseline quota allocations, reduction of and accounting for dead discards; new and/or modified time and area closures; and methods to improve reporting and monitoring of discards and landings. The potential measures listed in the scoping document are intended to be catalysts for scoping, and should not be viewed as the entire range of options NMFS is taking into consideration.

(1) BFT Baseline Quotas and Allocations

NMFS received various requests to consider catch data rather than just landings data to establish a more effective distribution of quota, enabling better quota utilization and fewer discards; to provide all categories with more quota if the Total Allowable Catch increases; and to reduce all BFT quotas by 50 percent.

(2) Bycatch and Dead Discards

NMFS received a request to use the term “regulatory discards” rather than “dead discards,” to provide a clear explanation of the dead discards estimation methodology that is understandable by laypersons, to require observer coverage and logbook use for all permit categories, and to calculate the anticipated reduction in dead discards from weak hook use in the Gulf of Mexico when considering a proxy for the 2011 dead discard estimate.

(3) Permits

NMFS received a request to change all BFT permits from open access to limited access. The commenter stated that the open access nature of the fishery compounds the quota allocation issue.

(4) Data

NMFS received a comment that the Angling category landings are completely estimated and may be significantly incorrect, and a comment that NMFS should collect more information on all BFT (commercial and recreational), whether landed or discarded dead.

(5) ICCAT

NMFS received a comment that the stock assessment science considered by ICCAT lags behind what the U.S. fishermen are seeing on the water, resulting in U.S. fishermen fighting among themselves while eastern Atlantic and Mediterranean BFT fishermen benefit. Some commenters stated that the U.S. delegation to ICCAT should renegotiate the BFT recommendation to increase quotas and the amount of underharvest allowed to be carried forward from one year to the next and should pursue two-year balancing periods for increased flexibility.

(6) Inseason BFT Fishery Management

NMFS received requests to set the General category daily retention limit for June through August at four fish, to close the Longline category southern area BFT fishery as soon as the quota is met, and to carefully monitor pelagic longline activity on the east coast of Florida.

(7) Public Hearings

NMFS received a request to hold hearings in all areas, despite budget restraints, so that all affected fishermen have the opportunity to present their perspectives on any rule that may affect them. Another commenter requested that NMFS hold more meetings generally, with at least half being conducted in metropolitan areas rather than specifically in areas where participants profit from fisheries.

C. Comment From the Center for Biological Diversity

On May 4, 2012, 18 days after the comment period for this proposed rule ended, the Center for Biological Diversity (Center) submitted comments on the rule, including a request that NMFS supplement the Environmental Assessment prepared for the final 2011 quota rule (76 FR 39019, July 5, 2011) to consider information about the Deepwater Horizon/BP oil spill and alleged illegal fishing on the eastern Atlantic and Mediterranean BFT stock, due to the potential effects of mixing on western Atlantic BFT stock recovery. The Center claims that the proposed 2012 quota specifications would violate National Standards 1 and 2 by carrying forward any of the 2011 bluefin tuna underharvest to 2012 and allocating it to fishermen, because they argue that the proposed rule fails to prevent overfishing and use the best available science on the effects of the Deepwater Horizon/BP oil spill and the effects of mixing of eastern and western BFT stocks. Under National Standard 1, conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the U.S. fishing industry. Under National Standard 2, conservation and management measures shall be based upon the best scientific information available. In December 2011, the Center filed a complaint against the Secretary of Commerce, NOAA, and NMFS, regarding a November 2011 final rule implementing Adjustments to the Atlantic Bluefin Tuna General and Harpoon Category Regulations (76 FR 74003, November 30, 2011). The Center claims that the rule violated the Magnuson-Stevens Act, the National Environmental Policy Act, and the Administrative Procedure Act.

NMFS is not required under the Administrative Procedure Act to respond to comments received following the end of a rule's comment period. NMFS typically takes late comments “into consideration” without formally responding to those comments, but has the option of formally addressing such comment in a final rule. Nonetheless, NMFS will respond to the Center's comments. Below, NMFS addresses the portions of the Center's comment that are relevant to this rulemaking.

Deepwater Horizon/BP Oil Spill

In 2010, in response to a petition to list BFT under the Endangered Species Act submitted by the Center, NMFS convened a status review team (Team) to review the status of western BFT. As described on pages 48 through 50 of the BFT Status Review Report (available at: www.nmfs.noaa.gov/stories/2011/05/docs/bft_srr_final.pdf) the Team modeled the potential effect of the Deepwater Horizon/BP oil spill on the future abundance of BFT. The Team compared projections made by the ICCAT Standing Committee on Research and Statistics (SCRS) in 2010 with similar projections that assume the number of BFT yearlings (one-year-old fish) in 2011 would be reduced by 20 percent. The value of 20 percent was based on a report by the European Space Agency that suggested that about 20 percent of the spawning habitat was oiled. The Team noted that another study suggested that considerably less than 20 percent of the spawning habitat for western BFT was affected by the spill. However, given other factors, the Team regarded 20 percent as a reasonable upper bound for the mortality rate of BFT larvae owing to the spill event. The 20 percent reduction in the 2010 year-class (2011 yearlings) results in less than a 4 percent reduction in spawning biomass when future catches are within the range historically allowed under ICCAT management (i.e., 2,500 mt or less). This result is not surprising because BFT are a relatively long-lived species and the 2010 year class is only one of multiple year classes that will contribute to the spawning biomass in any given year. If the TAC remains less than 2,500 mt, as is expected, then the western BFT stock would be expected to continue to increase despite the Deepwater Horizon/BP oil spill; if however, catches are allowed to exceed 2,500 mt, then the western stock would be expected to decline and any reduction in the 2010 year class would hasten that decline.

The Team also conducted projections using the `MAST' model (Multistock Age-Structured Tag-Integrated assessment model), which uses electronic tagging data in an effort to account for intermixing between the eastern and western stocks, under the assumption that future catches in the western Atlantic would be 1,800 mt and future catches in the east would be 13,500 mt (slightly greater than allowed by the current management plans). The results of these modeling projections were very similar to those above. In this case, a 20-percent reduction in the 2010 year-class would be projected to cause only a 3-percent reduction in spawning biomass.

The Team also considered the potential impacts of scenarios in which 20 percent of the adult BFT were also killed in 2010, in which case the spawning biomass would be immediately reduced by 20 percent, which might lead to additional reductions in the 2011 and subsequent year-classes (relative to what they would have been in the absence of the spill), and in turn, reductions in future spawning biomass levels. The Team noted, however, the absence of any evidence that any portion of adults were actually deleteriously affected, and noted that all of the electronically-tagged bluefin tuna that were known to have spent time in the Gulf of Mexico during the actual spill event (8 fish) survived long after leaving the Gulf of Mexico.

Best Available Science

In the 2011 SCRS Executive Summary (Section 8.5 of the recent ICCAT biennial report, which can be found at www.iccat.int/Documents/BienRep/REP_EN_10-11_II_2.pdf), the SCRS acknowledges that the conclusions of the 2010 assessment do not capture the full degree of uncertainty in the assessments and projections, and that an important factor contributing to uncertainty is mixing between fish of eastern and western origin. Limited analyses were conducted of the two stocks with mixing in 2008, but little new information was available in 2010. The SCRS states that management actions taken in the eastern Atlantic and Mediterranean are likely to influence recovery in the western Atlantic, because even small rates of mixing from East to West can have significant effects on the West due to the fact that the Eastern plus Mediterranean resource is much larger than that of the West. However, the extent of mixing is currently unknown, and is currently the subject of significant research.

Regarding impacts of the Deepwater Horizon/BP oil spill, NMFS considers the information summarized in the BFT Status Review to be the best scientific information of the effect of the Deepwater Horizon/BP oil spill on bluefin tuna on which to base management actions at this time and no additional information is available upon which to change that basis. Regarding catch levels in the eastern Atlantic and Mediterranean on western Atlantic BFT, NMFS considers the information summarized in the reports of the SCRS to be the best scientific information to serve as the basis of management actions at this time, both internationally and domestically, but notes that a new scientific paper on the MAST model is available. NMFS expects this new information will be reviewed and incorporated by the SCRS in the upcoming 2012 BFT stock assessments, as appropriate. Until that time, however, the SCRS assessments remain the best scientific information available.

NMFS continues to rely upon the 2010 SCRS stock assessment as the best scientific information available. That stock assessment was subject to rigorous analysis and review by a panel of experts from participating ICCAT countries. A new stock assessment is expected in fall 2012, along with a new ICCAT recommendation on total allowable catch and country quotas and other bluefin conservation and management measures. The newly available MAST that addresses mixing of eastern and western Atlantic bluefin tuna stocks will be reviewed and incorporated as appropriate in that upcoming assessment process. Thus, while the MAST model is available for review, it has not been subject to the rigorous analysis and review by ICCAT's panel of experts. Therefore, NMFS' actions in implementing the ICCAT quota consistent with the ICCAT Rebuilding Program and the 2010 stock assessment are consistent with the Magnuson-Stevens Act's National Standard 2 to utilize the best available scientific information.

The 2010 SCRS stock assessment analyzed the status of the western Atlantic bluefin tuna stock using two recruitment scenarios: a “high recruitment” and “low recruitment” scenario. SCRS concluded that there was no basis for choosing one scenario over the other (i.e., both scenarios are equally likely). Under the low recruitment scenario, the stock is considered rebuilt, overfishing is not occurring, and a total allowable catch of up to 2,500 metric tons would maintain the stock biomass above the level that can support MSY. Under the high recruitment scenario, the stock remains overfished with overfishing occurring and will not rebuild by the end of 2018 (under the 20-year rebuilding period that began in 1999) even with no catch. The SCRS indicated that a total allowable catch of 1,800 metric tons would allow the stock to grow under both recruitment scenarios. ICCAT adopted a total allowable catch of 1,750 mt, which was a reduction of 50 mt from the TAC for 2011.

The quotas as implemented remain consistent with the ICCAT Rebuilding Program that was adopted domestically in the rule implementing the 1999 FMP and that was continued in regulations under the 2006 Consolidated HMS FMP. The main objective of the ICCAT Rebuilding Program is to maintain western Atlantic bluefin tuna populations at levels that will support MSY. Therefore, NMFS' actions are consistent with National Standard 1 of the Magnuson-Stevens Act, which states that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield (OY) for the fishery.

Carrying Underharvest Forward

NMFS maintains that the carryforward of underhavest is consistent with ICCAT Recommendation 10-03, ATCA, and the Magnuson-Stevens Act. Beginning with the 2011 fishing year, ICCAT Recommendation 10-03 limits the amount of underharvest that may be carried forward from one year to the next to no more than 10 percent of a country's quota. This amount was reduced from the 50-percent limit in the 2006 ICCAT western Atlantic BFT recommendation (06-06), which was in effect for 2007 through 2010. Prior to 2007, a country could carry forward the full amount of its underharvest to the following year. The United States has supported ICCAT's efforts to control quota stockpiling as part of bluefin tuna management recommendations, such as establishing limits on the amount of unused quota that can be carried from one year to the next, for fairness and conservation reasons.

Under ATCA, NMFS is authorized to promulgate such regulations as may be necessary and appropriate to carry out ICCAT recommendations. Under the Magnuson-Stevens Act (16 U.S.C. 1854(g)(1)(D)), NMFS is required to provide U.S. fishing vessels with “a reasonable opportunity to harvest” any allocation or quota to which the United States has agreed under ICCAT. To meet the multiple goals for the BFT fisheries, NMFS considers the importance of all of the national standards when making fishery management decisions, including those intended to provide reasonable fishing opportunities to a wide range of users and gear types, coastwide, throughout the calendar year.

Classification

The NMFS Assistant Administrator has determined that this final rule is consistent with the Magnuson-Stevens Act, ATCA, and other applicable law, and is necessary to achieve domestic management objectives under the Consolidated HMS FMP.

This final rule is exempt from the procedures of E.O. 12866 because this action contains no implementing regulations.

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS has prepared a brochure summarizing fishery information and regulations for Atlantic tuna fisheries for 2012. This brochure also serves as the small entity compliance guide. Copies of the compliance guide are available from NMFS (see ADDRESSES).

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues this final rule to implement Amendment 11 to the Fishery Management Plan for the Spiny Lobster Fishery in the Gulf of Mexico and South Atlantic (FMP), as prepared and submitted by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils). This final rule limits spiny lobster trap fishing in certain areas in the exclusive economic zone (EEZ) off the Florida Keys to protect threatened species of corals and addresses the requirements of a 2009 Endangered Species Act (ESA) biological opinion on the spiny lobster fishery.

DATES:

This rule is effective August 27, 2012.

ADDRESSES:

Electronic copies of Amendment 11, which includes a supplemental environmental impact statement and a regulatory flexibility analysis, may be obtained from the Southeast Regional Office Web site at http://sero.nmfs.noaa.gov/sf/pdfs/Final_Spiny_Lobster_Amend_11_April_05_2012.pdf.

The spiny lobster fishery of the Gulf of Mexico (Gulf) and the South Atlantic is managed under the FMP. The FMP was prepared by the Councils and implemented through regulations at 50 CFR parts 622 and 640 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

A 2009 ESA biological opinion on the continued authorization of the spiny lobster fishery contained specific terms and conditions required to implement the prescribed reasonable and prudent measures and requires NMFS and the Councils to work together to protect areas of staghorn and elkhorn coral. This final rule addresses the required measure to create new or expand existing closed areas for lobster trap fishing where colonies of these threatened species are present.

On September 19, 2011, NMFS published a notice of intent to prepare a supplemental environmental impact statement for Amendment 11 and requested public comment (76 FR 57958). On April 27, 2012, NMFS published a notice of availability for Amendment 11 and requested public comment (77 FR 25116). On May 15, 2012, NMFS published a proposed rule for Amendment 11 and requested comment (77 FR 28560). The proposed rule and Amendment 11 outline the rationale for the action contained in this final rule. A summary of the action being implemented by this final rule is provided below.

This final rule prohibits spiny lobster trap fishing in 60 closed areas that cover a total of 5.9 mi2 (15.3 km2), distributed throughout the South Atlantic EEZ off the Florida Keys. These areas were chosen to protect threatended coral colonies with high conservation value and areas of high coral density. The closed areas meet the applicable requirements of the 2009 ESA biological opinion.

Comments and Responses

NMFS received five public comment submissions on Amendment 11 and the proposed rule, including three comments from individuals. Two Federal agencies stated they had no comment on the rule. Specific comments related to the actions contained in Amendment 11 and the proposed rule, as well as NMFS' respective responses, are summarized below.

Comment 1: Lobster trapping destroys reefs and should be prohibited.

Response: Amendment 11 does not address the general use of traps in the lobster fishery. The purpose of Amendment 11 is to implement the specific terms and conditions of the 2009 ESA biological opinion, one of which is to create new or expand existing closed areas to protect elkhorn and staghorn coral. The purpose of this final rule is to implement Amendment 11 and is not intended to address all possible management measures for the lobster fishery as a whole. The prohibition of lobster trap fishing in the 60 areas implemented through Amendment 11 will help protect reefs in the designated areas. As explained in Amendment 11, these areas were selected by identifying elkhorn and staghorn coral colonies and applying six general criteria to choose the areas that will provide the greatest benefit. In consultation with various stakeholders, NMFS and the Councils selected areas to be closed to lobster trap fishing that protect threatened coral colonies with high conservation value and areas of high coral density.

Comment 2: Closing areas to lobster trap fishing is long overdue.

Response: The measures contained in this final rule were developed to meet specific terms and conditions of the 2009 ESA biological opinion. NMFS and the Councils gathered data on identified elkhorn and staghorn coral colonies, then worked with fishermen, scientists, and managers to select areas to close to lobster trap fishing. This colloborative and deliberative process took time, but is intended to ensure that the areas selected will protect elkhorn and staghorn coral with the highest conservation value without overly restricting access to lobster fishing areas.

Classification

The Regional Administrator, Southeast Region, NMFS has determined that this final rule is necessary for the conservation and management of protected species described within Amendment 11, and is consistent with the FMP, the 2009 ESA biological opinion, the Magnuson-Stevens Act, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here.

No substantive comments were received on the certification provided in the proposed rule (77 FR 28560, May 15, 2012). No changes to the final rule were made in response to public comments. As a result, a final regulatory flexibility analysis was not required and none was prepared.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Temporary rule; apportionment of reserves; request for comments.

SUMMARY:

NMFS apportions an amount of the non-specified reserve to the initial total allowable catch of squid in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the fisheries to continue operating. It is intended to promote the goals and objectives of the fishery management plan for the BSAI.

DATES:

Effective July 24, 2012, through 2400 hrs, Alaska local time, December 31, 2012. Comments must be received at the following address no later than 4:30 p.m., Alaska local time, August 8, 2012.

ADDRESSES:

You may submit comments on this document, identified by NOAA-NMFS-2012-0147, by any of the following methods:

• Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0147 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on that line.

Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address) submitted voluntarily by the sender will be publicly accessible.

Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT:

Obren Davis, 907-586-7228.

SUPPLEMENTARY INFORMATION:

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2012 initial total allowable catch (ITAC) of squid in the BSAI was established as 361 metric tons (mt) by the final 2012 and 2013 harvest specifications for groundfish of the BSAI (77 FR 10669, February 23, 2012). In accordance with § 679.20(a)(3) the Regional Administrator, Alaska Region, NMFS, has reviewed the most current available data and finds that the ITAC for squid in the BSAI needs to be supplemented from the non-specified reserve in order to promote efficiency in the utilization of fishery resources in the BSAI and allow fishing operations to continue.

Therefore, in accordance with § 679.20(b)(3), NMFS apportions from the non-specified reserve of groundfish 64 mt to the squid ITAC in the BSAI. This apportionment is consistent with § 679.20(b)(1)(i) and does not result in overfishing of a target species because the revised ITAC is equal to or less than the specifications of the acceptable biological catch in the final 2012 and 2013 harvest specifications for groundfish in the BSAI (77 FR 10669, February 23, 2012).

The harvest specification for the 2012 ITAC included in the harvest specifications for groundfish in the BSAI is revised as follows: 425 mt for squid in the BSAI.

Classification

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, (AA) finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) and 679.20(b)(3)(iii)(A) as such a requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the apportionment of the non-specified reserves of groundfish to the squid fishery in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of these fisheries, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 23, 2012.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

Under § 679.20(b)(3)(iii), interested persons are invited to submit written comments on this action (see ADDRESSES) until August 8, 2012.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.

The Defense Nuclear Facilities Safety Board (Board) is responsible for making recommendations to the Secretary of Energy and the President regarding health and safety issues at the Department of Energy's (DOE) defense nuclear facilities. In this notice, the Board proposes a rule establishing procedures for conducting preliminary and formal safety investigations of events or practices at DOE defense nuclear facilities that the Board determines have adversely affected, or may adversely affect, public health and safety. The Board's experience in conducting formal safety investigations necessitates codifying the procedures set forth in the proposed rule. These procedures, among other benefits, will ensure a more efficient investigative process, protect confidential and privileged safety information, and promote uniformity of future safety investigations.

DATES:

To be considered, comments must be mailed, emailed, or delivered to the address listed below by 5 p.m. on or before August 27, 2012.

The Board is authorized to promulgate this proposed rule pursuant to its enabling legislation in the Atomic Energy Act of 1954, as amended, at 42 U.S.C. 2286b(c), which states that the Board may prescribe regulations to carry out its responsibilities. The Board is vested with broad authority pursuant to 42 U.S.C. 2286a(a)(2) to investigate events or practices which have adversely affected, or may adversely affect, public health and safety at DOE defense nuclear facilities.

The proposed rule establishes a new Part 1708 to the Board's regulations, setting forth procedures governing the specific conduct of safety investigations. The rule is intended to state clearly the Board's policy and procedures for safety investigations convened pursuant to the Board's enabling legislation. The Board has not previously proposed a rule specifically addressing procedures to be utilized in safety investigations. Rather, the Board has conducted preliminary safety inquiries and formal safety investigations pursuant to its statutory authority, when appropriate, following standard safety investigation policies, practices, and procedures. The proposed rule is intended to formalize those practices and procedures. The experience of Board investigators was utilized in drafting the proposed rule. The proposed rule will ensure a more efficient investigative process, and promote uniformity in the investigation of events or practices that have adversely affected, or may adversely affect, health and safety of the public and workers at DOE defense nuclear facilities. The proposed rule also serves the Board's duty to protect confidential and privileged safety information.

It is imperative that Board investigators be able to obtain information from witnesses as necessary to form an understanding of the underlying causes of events or practices that have adversely affected, or may adversely affect, public health and safety at DOE defense nuclear facilities. Frank, open communications are critical if Board investigators are to be effective. The Board must also be viewed as uncompromising in maintaining non-disclosure of privileged safety information. The Board must be able to assure complete confidentiality in order to encourage future witnesses to come forward without fear of reprisal from employers.

As such, the Board requires the authority to offer witnesses enforceable assurances of confidentiality in order to encourage their full and frank testimony. Without such authority, witnesses may refrain from providing the Board with vital information affecting public health and safety, which will, in turn, frustrate the efficient operation of the Board's oversight mission. To encourage candor and facilitate the free flow of information, the Board adopts in this proposed rule procedures establishing a safety privilege to protect confidential witness statements from disclosure to the maximum extent permitted under existing law.

Matters of Regulatory Procedure Administrative Procedure Act

This rulemaking complies with the Administrative Procedure Act and allows for a 30-day comment period. Interested persons are invited to submit written comments to the Board on this proposed rule, to be received on or before August 27, 2012. The Board will review all comments received and consider any modifications to this proposal that appear warranted in issuing its final rule.

Regulatory Flexibility Act

For purposes of the Regulatory Flexibility Act, the rule will not have a significant economic impact on a substantial number of small entities. The rule addresses only the procedures to be followed in safety investigations. Accordingly, the Board has determined that a Regulatory Flexibility Analysis is not required.

Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995, the proposed rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

Executive Order 12866

In issuing this regulation, the Board has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This rule has not been reviewed by the Office of Management and Budget under that Executive Order since it is not a significant regulatory action within the meaning of the Executive Order.

Executive Order 12988

The Board has reviewed this regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certifies that it meets the applicable standards provided therein.

Paperwork Reduction Act

The Paperwork Reduction Act does not apply because this regulation does not contain information collection requirements that require approval by the Office of Management and Budget. The Board expects the collection of information that is called for by the regulation would involve fewer than 10 persons each year.

Congressional Review Act

The Board has determined that this rulemaking does not involve a rule within the meaning of the Congressional Review Act.

List of Subjects in 10 CFR Part 1708

Administrative practice, Procedure, and Safety investigations.

For the reasons set forth in the preamble, the Defense Nuclear Facilities Safety Board proposes to add Part 1708 to 10 CFR chapter XVII to read as follows:

PART 1708—PROCEDURES FOR SAFETY INVESTIGATIONSSec.1708.100Authority to conduct safety investigations.1708.101Scope and purpose of safety investigations.1708.102Types of safety investigations.1708.103Request to conduct safety investigations.1708.104Confidentiality of safety investigations and privileged safety information.1708.105Promise of confidentiality.1708.106Limitation on participation.1708.107Powers of persons conducting formal safety investigations.1708.108Cooperation: ready access to facilities, personnel, and information.1708.109Rights of witnesses in safety investigations.1708.110Multiple interests.1708.111Sequestration of witnesses.1708.112Appearance and practice before the Board.1708.113Right to submit statements.1708.114Official transcripts.1708.115Final report of safety investigation.1708.116Procedure after safety investigations.Authority:

(a) The Board shall investigate any event or practice at a Department of Energy defense nuclear facility which the Board determines has adversely affected, or may adversely affect, public health and safety.

(b) The purpose of any Board investigation shall be:

(1) To determine whether the Secretary of Energy is adequately implementing standards (including all applicable Department of Energy orders, regulations, and requirements) at Department of Energy defense nuclear facilities;

(2) To ascertain information concerning the circumstances of such event or practice and its implications for such standards;

(3) To determine whether such event or practice is related to other events or practices at other Department of Energy defense nuclear facilities; and

(4) To provide to the Secretary of Energy such recommendations for changes in such standards or the implementation of such standards (including Department of Energy orders, regulations, and requirements) and such recommendations relating to data or research needs as may be prudent or necessary.

§ 1708.102 Types of safety investigations.

(a) The Board may initiate a preliminary safety inquiry or order a formal safety investigation.

(b) A preliminary safety inquiry means any inquiry conducted by the Board or its staff, other than a formal investigation. Where it appears from a preliminary safety inquiry that a formal safety investigation is appropriate, the Board's staff will so recommend to the Board.

(c) A formal safety investigation is instituted by an Order of Safety Investigation issued either after a recorded notational vote of Board Members or after convening a meeting in accordance with the Government in the Sunshine Act and voting in open or closed session, as the case may be.

(d) Orders of Safety Investigations will outline the basis for the investigation, the matters to be investigated, the Investigating Officer(s) designated to conduct the investigation, and their authority.

(e) The Office of the General Counsel shall have primary responsibility for conducting and leading a formal safety investigation. The Investigating Officer(s) shall report to the Board.

(f) The Board, or an individual Board Member authorized by the Board, may hold such closed or open hearings and sit and act at such times and places, and require the attendance and testimony of such witnesses and the production of such evidence as the Board or an authorized member may find advisable, or exercise any other applicable authority as provided in the Board's enabling legislation.

(g) Subpoenas in formal safety investigations may be issued only by signature of the Chairman, or any Member of the Board designated by the Chairman, and shall be served by any person designated by the Chairman, or otherwise as provided by law.

§ 1708.103 Request to conduct safety investigations.

(a) Any person may request that the Board perform a preliminary safety inquiry or conduct a formal safety investigation concerning a matter within the Board's jurisdiction.

(b) Actions the Board may take regarding safety investigation requests are discretionary.

(c) The Board will offer to protect the identity of a person requesting a safety investigation to the maximum extent permitted by law.

(d) Board safety investigations are wholly administrative and investigatory in nature and do not involve a determination of criminal culpability, adjudication of rights and duties, or other quasi-judicial determinations.

(a) Information obtained during the course of a preliminary safety inquiry or a formal safety investigation may be treated as confidential, safety privileged, and non-public by the Board and its staff, to the extent permissible under existing law. The information subject to this protection includes but is not limited to: Identity of witnesses; recordings; statements; testimony; transcripts; emails; all documents, whether or not obtained pursuant to Board subpoena; any conclusions based on privileged safety information; any deliberations or recommendations as to policies to be pursued; and all other related investigative proceedings and activities.

(b) The Board shall have the discretion to assert the safety privilege when safety information, determined by the Board as protected from release, is sought by any private or public governmental entity or by parties to litigation who attempt to compel its release.

(c) Nothing in this section voids or otherwise displaces the Board's legal obligations with respect to compliance with the Freedom of Information Act, the Government in the Sunshine Act, or any procedures or requirements contained in the Board's regulations issued pursuant to those Acts.

§ 1708.105 Promise of confidentiality.

(a) The Investigating Officer(s) may give a promise of confidentiality to any individual who provides evidence for a safety inquiry or investigation, to encourage frank and open communication.

(b) A promise of confidentiality must be explicit.

(c) A promise of confidentiality must be documented in writing.

(d) A promise of confidentiality may be given only as needed to ensure forthright cooperation of a witness and may not be given on a blanket basis to all witnesses.

(e) A promise of confidentiality must inform the witness that it applies only to information given to the Investigating Officer(s) and not to the same information if given to others.

§ 1708.106Limitation on participation.

(a) A safety investigation under this rule is not a judicial or adjudicatory proceeding.

(b) No person or entity has standing to intervene or participate as a matter of right in any safety investigation under this regulation.

§ 1708.107 Powers of persons conducting formal safety investigations.

The Investigating Officer(s) appointed by the Board may take informal or formal statements, interview witnesses, take testimony, request production of documents, recommend issuance of subpoenas, recommend taking of testimony in a closed forum, recommend administration of oaths, and otherwise perform any lawful act authorized under the Board's enabling legislation in connection with any safety investigation ordered by the Board.

(a) Section 2286c(a) of the Atomic Energy Act of 1954, as amended, requires the Department of Energy to fully cooperate with the Board and provide the Board with ready access to such facilities, personnel, and information as the Board considers necessary, including ready access in connection with a safety investigation.

(b) Each contractor operating a Department of Energy defense nuclear facility under a contract awarded by the Secretary is also required, to the extent provided in such contract or otherwise with the contractor's consent, to fully cooperate with the Board and provide the Board with ready access to such facilities, personnel, and information of the contractor as the Board considers necessary in connection with a safety investigation.

(c) The Board may make a written request to persons or entities relevant to the safety investigation to preserve pertinent information, documents, and evidence, including electronically stored information, in order to preclude alteration or destruction of that information.

§ 1708.109 Rights of witnesses in safety investigations.

(a) Any person who is compelled to appear in person to provide testimony or produce documents in connection with a safety investigation is entitled to be accompanied, represented, and advised by an attorney.

(b) If an executive branch agency employee witness is represented by counsel from that same agency, counsel shall identify who counsel represents to determine whether counsel represents multiple interests in the safety investigation.

(c) Counsel for a witness may advise the witness with respect to any question asked where it is claimed that the testimony sought from the witness is outside the scope of the safety investigation, or that the witness is privileged to refuse to answer a question or to produce other evidence. For these permissible objections, the witness or counsel may object on the record to the question and may state briefly and precisely the ground therefore. If the witness refuses to answer a question, then counsel may briefly state on the record that counsel has advised the witness not to answer the question and the legal grounds for such refusal. The witness and his or her counsel shall not otherwise object to or refuse to answer any question, and they shall not otherwise interrupt any oral examination.

(d) When it is claimed that the witness has a privilege to refuse to answer a question on the grounds of self-incrimination, the witness must assert the privilege personally.

(e) Any objections made during the course of examination will be treated as continuing objections and preserved throughout the further course of testimony without the necessity for repeating them as to any similar line of inquiry.

(f) Counsel for a witness may not interrupt the examination by making any unnecessary objections or statements on the record.

(g) Following completion of the examination of a witness, such witness may make a statement on the record, and that person's counsel may, on the record, question the witness to enable the witness to clarify any of the witness's answers or to offer other evidence.

(h) The Investigating Officer(s) shall take all measures necessary to regulate the course of an investigative proceeding to avoid delay and prevent or restrain obstructionist or contumacious conduct or contemptuous language.

(i) The Investigating Officer(s) may report to the Board any instances where counsel for a witness, or other representative, has refused to comply with his or her directions, or has engaged in obstructionism or contumacy. The Board may thereupon take action as the circumstances may warrant.

(j) Witnesses appearing voluntarily do not have a right to have counsel present during questioning, although the Investigating Officer, in consultation with the Office of the General Counsel, may permit a witness appearing on a voluntary basis to be accompanied by an attorney or non-attorney representative.

§ 1708.110 Multiple interests.

(a) If counsel representing a witness appears in connection with a safety investigation, counsel shall state on the record all other persons or entities counsel represents in that investigation.

(b) When counsel does represent more than one person or entity in a safety investigation, counsel shall inform the Investigating Officer and each client of counsel's possible conflict of interest in representing that client.

(c) When an Investigating Officer, or the Board, as the case may be, in consultation with the Board's General Counsel, has concrete evidence that the presence of an attorney representing multiple interests would obstruct or impede the safety investigation, the Investigating Officer(s) or the Board may prohibit that attorney from being present during testimony.

§ 1708.111 Sequestration of witnesses.

(a) Witnesses shall be sequestered during interviews, or during the taking of testimony, unless otherwise permitted by the Investigating Officer(s), or by the Board, as the case may be.

(b) No witness, or counsel accompanying any such witness, shall be permitted to be present during the examination of any other witness called in such proceeding, unless permitted by the Investigating Officer(s), or the Board, as the case may be.

§ 1708.112 Appearance and practice before the Board.

(a) Counsel appearing before the Board or the Investigating Officer(s) must conform to the standards of ethical conduct required of practitioners before the Courts of the United States.

(b) The Board may suspend and deny, temporarily or permanently, the privilege of appearing or practicing before the Board in any way to a person who is found:

(1) Not to possess the requisite qualifications to represent others; or

(2) To have engaged in unethical or improper professional conduct; or

(3) To have engaged in obstructionism or contumacy; or

(4) To be otherwise not qualified.

(c) Obstructionist or contumacious conduct in an investigation before the Board or the Investigating Officer(s) will be grounds for exclusion of any person from such safety investigation proceedings and for summary suspension for the duration of the course of the investigation.

(d) A witness may retain replacement counsel if original counsel is suspended or excluded.

§ 1708.113 Right to submit statements.

At any time during the course of an investigation, any person may submit documents, statements of facts, or memoranda of law for the purpose of explanation or further development of the facts and circumstances relevant to the safety matter under investigation.

§ 1708.114 Official transcripts.

(a) Official transcripts of testimony of witnesses, whether or not compelled by subpoena to appear before a Board safety investigation, shall be recorded either by an official reporter, or by any other person or means designated by the Investigating Officer or the Board's General Counsel.

(b) Such witness, after completing the compelled testimony may file a request with the Board's General Counsel to procure a copy of the official transcript of that witness's testimony. The General Counsel shall rule on the request, and may deny for good cause.

(c) Good cause for denying a witness's request to procure a transcript may include, but shall not be limited to, the protection of a trade secret, non-disclosure of confidential or proprietary business information, security sensitive operational or vulnerability information, safety privileged information, or the integrity of Board investigations.

(d) Whether or not a request is made, the witness and his or her attorney shall have the right to inspect the official transcript of the witness's own testimony, in the presence of the Investigating Officer or his designee, for purposes of conducting errata review.

(e) Transcripts of testimony are otherwise considered confidential and privileged safety information and in no case shall a copy or any reproduction of such transcript be released to any other person or entity, except as provided in paragraph (2) above or as required under the Freedom of Information Act or the Government in the Sunshine Act, or any procedures or requirements contained in Board regulations issued pursuant to those Acts.

§ 1708.115 Final report of safety investigation.

(a) The Board will complete a final report of the safety investigation fully setting forth the Board's findings and conclusions.

(b) The final report of the safety investigation is confidential and protected by the safety privilege, and is therefore not releasable.

(c) The Board in its discretion may sanitize the final report of the safety investigation by redacting confidential and safety privileged information so that the report is put in a publically releasable format.

(d) Nothing in this section voids or otherwise displaces the Board's legal obligations with respect to compliance with the Freedom of Information Act, the Government in the Sunshine Act, or any procedures or requirements contained in the Board's regulations issued pursuant to those Acts.

§ 1708.116 Procedure after safety investigations.

(a) If a formal safety investigation results in a finding that an event or practice has adversely affected, or may adversely affect, public health and safety, the Board may take any appropriate action authorized to it under its enabling statute, including, but not limited to, making a formal recommendation to the Secretary of Energy, convening a hearing, or establishing a reporting requirement.

(b) If a safety investigation yields information relating to violations of Federal criminal law involving Government officers and employees, the Board shall expeditiously refer the matter to the Department of Justice for disposition.

(c) If in the course of a safety investigation a safety issue or concern is found to be outside the Board's jurisdiction, that safety issue or concern shall be referred to the appropriate entity with jurisdiction for disposition.

(d) Statements made in connection with testimony provided to the Board in an investigation are subject to the provisions of 18 U.S.C. 1001.

The Food and Drug Administration (FDA or Agency) is soliciting comments regarding potential changes to its regulations relating to records and reports for approved new animal drugs. FDA is considering revisions to this regulation to incorporate the requirements of section 105 of the Animal Drug User Fee Amendments of 2008 (ADUFA 105). As part of that process, FDA is reviewing other reporting requirements applicable to antimicrobial new animal drug sponsors to determine whether additional information should be reported. Collecting data on antimicrobial drugs used in food-producing animals will assist FDA in tracking antimicrobial use trends and examining how such trends may relate to antimicrobial resistance.

DATES:

Submit electronic or written comments by September 25, 2012.

ADDRESSES:

You may submit comments, identified by Docket No. FDA-2012-N-0447, by any of the following methods:

Instructions: All submissions received must include the Agency name and Docket No. FDA-2012-N-0447 for this rulemaking. All comments received may be posted without change to http://www.regulations.gov, including any personal information provided. For additional information on submitting comments, see the “Comments” heading of the SUPPLEMENTARY INFORMATION section of this document.

Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852.

Section 512(l) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360b(l)) requires sponsors of approved or conditionally approved new animal drug applications to establish and maintain records and make such reports of data relating to experience with uses and other data or information received or obtained by the sponsor with respect to such animal drugs as required by regulation or order. FDA's regulation relating to records and reports for approved new animal drugs is found at 21 CFR 514.80. This regulation requires an animal drug sponsor to submit a number of different reports, including periodic drug experience reports, which must contain, among other things, drug distribution data showing the amount of the drug distributed domestically and the amount exported.

In 2008, ADUFA 105 directed the Agency to collect additional data and information about approved antimicrobial new animal drugs by amending section 512(l) of the FD&C Act to include new reporting requirements for sponsors of approved antimicrobial new animal drugs. Under section 512(l) of the FD&C Act, as amended by ADUFA 105, antimicrobial new animal drug sponsors must now also submit to FDA on an annual basis a report specifying the amount of each antimicrobial active ingredient in the sponsor's drug that is sold or distributed for use in food-producing animals. Specifically, sponsors are required to report the amount of each antimicrobial active ingredient as follows: (1) By container size, strength, and dosage form; (2) by quantities distributed domestically and quantities exported; and (3) for each dosage form, a listing of the target animals, indications, and production classes that are specified on the approved label of the product. Currently, sponsors of antimicrobial drugs that are approved and labeled for multiple animal species, including both food-producing and nonfood-producing animals, do not report sales and distribution information for each individual animal species. Only total product sales information is reported. The information must be reported for the preceding calendar year, and include separate information for each month of the calendar year, and be submitted to FDA each year by no later than March 31. ADUFA 105 also requires FDA to publish an annual summary report of the antimicrobial drug sales and distribution data it receives.

The sales and distribution information that is currently being collected from antimicrobial new animal drug sponsors in accordance with ADUFA 105 is important in supporting efforts such as the National Antimicrobial Resistance Monitoring System (NARMS), a surveillance program that tracks trends related to antimicrobial resistance in food-producing animals and humans.

A recent Government Accountability Office (GAO) report addressing antibiotic resistance concluded that sales and distribution information as currently collected by FDA does not provide sufficient data needed to analyze trends in antimicrobial resistance, such as information on actual drug use in specific food-producing animal species (Ref. 1). Having improved data would enable the Agency to better correlate resistance data in NARMS with drug exposure, thereby providing improved information for science-based decisionmaking in the approval and monitoring of safe and effective antimicrobial drugs. In addition, such information would further enhance FDA's ongoing activities related to antimicrobial resistance and is consistent with the recommendations in guidance recently issued by this Agency addressing the judicious use of medically important antimicrobial drugs in food-producing animals (Ref. 2).

II. Agency Request for CommentsA. Sales and Distribution Data by Species

FDA is considering revisions to the requirements in this Agency's regulation at § 514.80 to incorporate the requirements of ADUFA 105 and, as part of that process, is reviewing other reporting requirements applicable to antimicrobial new animal drug sponsors to determine whether additional information should be reported. FDA is soliciting public comment on whether, consistent with its authority under section 512(l) of the FD&C Act to collect information relating to approved new animal drugs, it should amend its regulations to require the submission of additional sales and distribution information including, for antimicrobial animal drug products that are approved and labeled for more than one food-producing animal species, an estimate of the amount of each active antimicrobial ingredient sold or distributed for use in each approved food-producing animal species. Specifically, comments should address how sponsors can both practically and accurately provide separate sales and distribution information for each species.

B. FDA's Annual Summary Report

ADUFA 105 directs FDA to issue on an annual basis a summary report of the sales and distribution data collected from sponsors of antimicrobial new animal drugs and further provides that such data must be reported by antimicrobial class. ADUFA 105 also directs FDA to independently report only those antimicrobial drug classes with three or more distinct sponsors, so as to protect confidential business information. Within these statutory parameters, FDA is seeking public comment on how best to compile and present this summary information.

C. Alternative Methods for Obtaining Antimicrobial Use Data

FDA is seeking public comment on alternative methods available to the Agency for obtaining additional data and information about the extent of antimicrobial drug use in food-producing animals. Specifically, the Agency is requesting public input on alternative methods for assessing antimicrobial use the Agency can employ within its existing authority that may further support the analysis of factors related to the development and spread of antimicrobial resistance in connection with the use of medically important antibiotics in food-producing animals.

III. Comments

Interested persons may submit to the Division of Dockets Management (see ADDRESSES) either electronic or written comments regarding this document. It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document. Received comments may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

This advanced notice of proposed rulemaking is issued under section 512 of the FD&C Act (21 U.S.C. 360b) and under the authority of the Commissioner of Food and Drugs.

IV. References

The following references have been placed on display in the Division of Dockets Management (see ADDRESSES) and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday. (FDA has verified the Web site address, but we are not responsible for any subsequent changes to the Web site after this document publishes in the Federal Register.)

The Copyright Office of the Library of Congress is proposing to amend its regulations for reporting Monthly and Annual Statements of Account for the making and distribution of phonorecords under the compulsory license, 17 U.S.C. 115, to bring the regulations up to date to reflect recent and pending rate determinations by the Copyright Royalty Judges, which among other things provide new rates for limited downloads, interactive streaming and incidental digital phonorecord deliveries, and to harmonize these reporting requirements with the existing regulations for reporting the making and distribution of physical phonorecords, permanent downloads and ringtones.

DATES:

Comments are due no later than September 25, 2012. Reply comments are due October 25, 2012.

ADDRESSES:

The Copyright Office strongly prefers that comments be submitted electronically. A comment submission page is posted on the Copyright Office Web site at http://www.copyright.gov/docs/section115/soa/comments/. The Web site interface requires submitters to complete a form specifying name and other required information, and to upload comments as an attachment. To meet accessibility standards, all comments must be uploaded in a single file in either the Adobe Portable Document File (PDF) format that contains searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). The maximum file size is 6 megabytes (MB). The name of the submitter and organization should appear on both the form and the face of the comments. All comments will be posted publicly on the Copyright Office Web site exactly as they are received, along with names and, if provided, organizations. If electronic submission of comments is not feasible, please contact the Copyright Office at (202) 707-XXXX for special instructions.

Section 115 of the Copyright Act provides a compulsory license for reproducing and distributing phonorecords of a musical work. The mechanical license limits the exclusive rights granted to copyright owners by enabling anyone to make a phonorecord of an eligible musical work for the purpose of distributing it to the public for private use.

The mechanical license may be used once phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner. In order to legally use the mechanical license, the licensee has to comply with the requirements in the statute and pay a royalty fee to the copyright owner. The mechanical license has its limitations; it is only available to make and distribute phonorecords of a musical work and it does not allow the licensee to reproduce and distribute another's sound recording, or change the “basic melody or fundamental character of the work.” 17 U.S.C. 115(a)(2).

The mechanical license was established in the 1909 Copyright Act as the first compulsory license in United States copyright law. Congress created the license because it wanted to make musical compositions available for public use, prevent monopoly, and at the same time ensure that compensation is provided to copyright owners. The first mechanical license was established in response to the 1908 Supreme Court holding in White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908). The Court decided that piano rolls were not considered `copies' of a musical work because they did not contain a system of notation that could be read. Instead, the Court held they were merely mechanical reproductions made for the purpose of performing music. This decision prompted Congress to extend copyright protection to include the right to make mechanical devices which embody the musical work. H.R. Rep. No. 60-2222, at 9 (1909). However, Congress was concerned that extending the right of reproduction to include mechanical devices like piano rolls would enable a cartel of music publishers to exercise monopoly power over the recording of music to the possible detriment of the copyright owners of the musical work. To ensure a balance, Congress created the first compulsory license in 1909 to allow anyone to “cover” (i.e. make a new recording of) the musical work once a copyright owner made or authorized a recording of his or her musical work, as long as the licensee adhered to the terms of the license and paid the established royalty to the copyright owner.

Whether to retain the compulsory license was a key issue during the discussions on the general revision of the copyright law in the 1960s. The outcome of this review was the decision to retain the license based on a finding that “a compulsory licensing system is still warranted as a condition for the rights of reproducing and distributing phonorecords of copyrighted music.” H.R. Rep. No. 83, at 66-67 (1967). In the Copyright Act of 1976, Congress reaffirmed the compulsory license and directed the Copyright Office to establish terms and regulations for the filing of Notices of Intention to Obtain a Compulsory License and for reporting Monthly and Annual Statements of Account. 17 U.S.C. 115(b)(1) and (c)(5). These regulations can now be found within 37 CFR 201.18 and 201.19.

Congress again amended the mechanical license in 1995 when Congress passed the Digital Performance Rights in Sound Recordings Act (“DPRA”). This Act amended section 115 to address the effects of new technology on copyrighted works. DPRA had two main purposes: (1) To ensure that recording artists and record companies will be protected as new technologies affect the way in which their creative works are used, and (2) to create fair and efficient licensing mechanisms that address the complex issues facing copyright owners and copyright users as a result of the rapid growth of digital audio services.

Specifically, DPRA amended the section 115 compulsory license to include the ability to distribute a phonorecord through digital transmission, i.e., as a “digital phonorecord delivery.” The Copyright Act defines a “digital phonorecord delivery” in relevant part as “each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording.” 17 U.S.C. 115(d).

Since passage of the Copyright Royalty and Distribution Reform Act of 2003, the rates and terms for making and distributing phonorecords under the compulsory license have been established by the Copyright Royalty Judges. On January 9, 2006 the Copyright Royalty Judges published a Notice announcing commencement of a proceeding to determine rates and terms due under the compulsory license. The Copyright Royalty Judges concluded this proceeding in 2009. The new rates maintained a flat penny rate for the making and distribution of physical phonorecords, permanent digital downloads and ringtones. However, the 2009 determination adopting new rates for the section 115 compulsory license included a new definition for ringtones and it set forth more complex methods for calculating the royalty for limited downloads, interactive streaming, and incidental digital phonorecord deliveries, which included a multi-step process and specifications for five different types of services. Final Determination of Rates and Terms of the Copyright Royalty Board, 2006-3 CRB DPRA (74 FR 4510, January 26, 2009, amended 74 FR 6832, February 11, 2009). The Copyright Royalty Judges are also in the final stages of adopting new rates and terms for the next licensing term for these and other new services, including limited offerings, mixed service bundles, paid locker services and purchased content locker services. Proposed rule, Adjustment of Determination of Compulsory License Rates for Mechanical and Digital Phonorecords, 77 FR 29259, (May 17, 2012). The new proposed rates are based upon the same basic methodology adopted in the last rate setting proceeding.

The existing regulations addressing Statements of Account are designed to address flat penny rates, such as those that are still applicable for the making and distribution of physical phonorecords, permanent digital downloads and ringtones. However, the current regulations do not specifically accommodate the more complex methods for calculating the royalty for limited downloads, interactive streaming, incidental digital phonorecord deliveries, or the new services identified in the Copyright Royalty Judge's May 17, 2012 Notice of Proposed Rulemaking. A group of industry stakeholders comprised of Recording Industry Association of America, Inc., National Music Publishers Association, Songwriters Guild of America, Digital Media Association, Music Reports, Inc., RightsFlow, Inc., and American Association of Independent Music (collectively “Stakeholders”) expressed their concern with this state of affairs. Following a number of meetings with the Copyright Office, the Stakeholders offered proposed solutions to a number of issues for which there was general industry-wide agreement. (Letter from Stakeholders to Copyright Office, dated April 30, 2010).

In light of the changes to the rate structure for use of the license and the Stakeholders' expressed concerns, the Office is initiating this public notice and comment proceeding to amend its regulations governing the filing of Statements of Account in order to incorporate specific reporting regulations for the making and distribution of these new digital phonorecord formats under the new rate structure established by the Copyright Royalty Judges for these configurations in the Final Determination of Rates and Terms of the Copyright Royalty Board, 2006-3 CRB DPRA, and the proposed new rates and terms for the next licensing period.

The Copyright Office is acting under the authority set forth in 17 U.S.C. 115(c)(5), which grants the Copyright Office authority to issue regulations regarding Statements of Account. “Each monthly payment shall be made under oath and shall comply with requirements that the Register of Copyrights shall prescribe by regulation. The Register shall also prescribe regulations under which detailed cumulative annual statements of account, certified by a certified public accountant, shall be filed for every compulsory license under this section. The regulations covering both the monthly and the annual statements of account shall prescribe the form, content, and manner of certification with respect to the number of records distributed.” 17 U.S.C. 115(c)(5).

Specifically, the Copyright Office proposes the creation of a new Part 210 in title 37 of the Code of Federal Regulations for the regulations governing use of the compulsory license. Subpart A will be reserved for regulations governing the filing of Notices of Intention to Use the Compulsory License. These regulations, currently in § 201.18, are to be incorporated into Subpart A once the Office concludes its ongoing rulemaking proceeding concerning the electronic submission of such notices with the Office. See 77 FR 31327 (May 25, 2012). Subparts B and C will contain Statement of Account provisions for reporting royalties for the making and distribution of phonorecords. The Statement of Account provisions in § 201.19 are currently based on the penny rate royalty formula for physical phonorecords and permanent digital phonorecord deliveries. As the a penny rate for this type of licensed activity continues under the existing and proposed rates the Statement of Account provisions in § 201.19 are incorporated into proposed Subpart B of Part 210 with only minor amendments, as referenced herein. Subpart C, on the other hand, includes new proposed regulations modeled on the current regulations in § 201.19 and are designed to specifically accommodate the new rate structure for limited downloads, interactive streaming, incidental digital phonorecord deliveries, and the proposed new services. Adoption of regulatory amendments specific to the proposed rates and terms for limited offerings, mixed service bundles, music bundles, paid locker services and purchased content locker services set forth in proposed Subpart C are dependent upon final action by the Copyright Royalty Judges. Should the Copyright Royalty Judges not adopt the proposed rates and terms for these new services, alternative regulatory changes may be adopted in the final rules to cover these services.

In large part, the proposed regulations incorporate by reference the methodology adopted by the Copyright Royalty Judges in their 2009 determination and mirrored in the proposed regulations adopting new rates and terms for the upcoming licensing period. Nevertheless, the Office has identified a number of issues associated with the new rate structure that require careful consideration before adoption of final regulations. Prior to initiating this proceeding, the Office consulted with interested parties on these points for the purpose of understanding the extent of the issues and the need for specific regulations to address these points. Each of these points and proposed amendments to the regulations are discussed herein in light of these initial discussions. The Office seeks public comment on the proposed changes and whether additional changes are needed.

1. Issues Presented Involving Calculations of RoyaltiesA. Royalties for Public Performances of Musical Works That Are Applicable to the Licensed Activities

Calculation of the royalties for the making and distribution of limited DPDs, interactive streams, incidental DPDs and the proposed new services allows the licensee to deduct royalties due for public performances of musical works that are applicable to the licensed activities. 37 CFR 385.12(b)(2) and proposed 385.22(b)(2). The Office is aware that in some instances these values are unknown, and that the regulations need to address the appropriate method for accounting for this unknown element in the Statements of Account. Preliminary input from the Stakeholders has indicated general agreement that when the amount of public performance royalties to be deducted pursuant to 37 CFR 385.12(b)(2) and proposed 385.22(b)(2) is not known (e.g., because neither a final nor an interim rate has yet been determined), a licensee may compute the public performance royalty based on a reasonable estimate of the expected final royalties made in accordance with U.S. Generally Accepted Accounting Principles (GAAP) and that the aggregate amount of public performance royalties then sought from the service by performance rights societies may be deducted from the royalties owed for use of the section 115 compulsory license.

The Office also observes that there may be cases in which there will be interim royalties and that therefore it is prudent to allow licensees to compute the public performance royalty based on the royalties that have been established on an interim basis. In addition, the Stakeholders generally agree that an adjustment to account for the determination of the service's aggregate final public performance royalties then would be made in an amended Annual Statement of Account for the year in which a service's aggregate final public performance royalty rate is determined.

In the past, the Copyright Office has applied GAAP when estimates are required to complete a formula under section 115. GAAP was first applied to the section 115 compulsory license in 1978 when the Office adopted its Final Regulations of Compulsory License for Making and Distributing Phonorecords, 45 FR 79038 (November 28, 1980). In taking this approach, the Office noted that Congress's intention was to have some assurance that record companies would not manipulate their statements when allowing an estimate to be made in the reserve calculation. “The Office believes that the statutory requirement for an annual CPA audit, coupled with our regulatory requirements including the application of `generally accepted accounting principles' (GAAP) to the recognition of revenue from the sale of phonorecords, should go a long way toward assuring copyright owners payment of all monies to which they are entitled—that is, statutory royalties for all phonorecords shipped, minus phonorecords returned within a reasonable time-frame.” 45 FR 79038. Additionally the regulations stated, “The Copyright Office believes that the application of GAAP will reduce the likelihood of unusually high reserves, thereby minimizing the possibility for losses of earned interest.” Id.

Currently, GAAP applies to several different provisions in the section 115 regulations adopted by the Copyright Royalty Judges. Their regulations state that GAAP should be applied to the calculations of service revenue. 37 CFR 385.11; also see proposed 37 CFR 385.21. Additionally, GAAP is applied to situations where the licensee calculates an applicable percentage based on offering type. 37 CFR 385.13(b) and (c); also see, e.g., proposed 37 CFR 385.23(b). Finally in 37 CFR 201.19(f)(6)(ii) of the Office's regulations, GAAP is applied not only to the reserve calculation but also to the certification statement, which states that the auditing CPA will review the statements in accordance with GAAP.

In light of the history that GAAP has had in the administration of the compulsory license, the proposed regulations adopt this approach. The Copyright Office would like comments on whether to apply GAAP for the estimate of the public performance rights royalty calculation in the absence of an interim or final rate; and alternatively if GAAP is not the right approach, identification of an alternative methodology.

Under the existing Statement of Account regulations designed to address flat penny rates, licensees are permitted to account for negative reserve balances in calculating their royalty payments. By way of explanation, a negative reserve balance exists when physical phonorecords are returned to a compulsory licensee after the corresponding reserves for returns, and all other eligible reserves, have been eliminated. The result is that the compulsory licensee has paid royalties for the returned physical phonorecords and can include that amount as a credit in calculating the royalty payment for the current accounting period. While the Stakeholders agree that a licensee is permitted to establish reserves based only on its shipments of physical phonorecords, they disagree as to whether a compulsory licensee is and should be permitted to apply a negative reserve balance to future DPD distributions.

Copyright owners have stated that negative reserve balances only apply to physical phonorecords. In doing so, they have pointed out that the existing regulations specifically state that “[t]o the extent that the terms reserve, credit and return appear in this section, such provisions shall not apply to digital phonorecord deliveries.” 37 CFR 201.19(a)(9). Copyright owners have also argued that it is bad policy to allow licensees to apply royalties associated with negative reserve balances against royalties due for digital uses as it would encourage the practice of overshipping.

Record labels have stated that they understand that negative reserve balances cannot be established for DPD distributions. Nevertheless, they contend that the current regulations clearly allow credits for negative reserve balances created by returns of physical phonorecords to be applied to royalties due for digital uses. They have argued that there is no justification for requiring a compulsory licensee to pay royalties on new DPD distributions when, due to returns of physical phonorecords, it has overpaid the same copyright owner in a previous period for these same physical phonorecords that have not been distributed within the meaning of 17 U.S.C. 115(c)(2). They have added that it is absurd to think that record companies would incur additional costs to “overship” products.

While the Office has not proposed an amendment to allow licensees to apply a credit for a negative reserve balance to royalties due for digital uses, it would like to receive comments on whether there is statutory authority for allowing the application of a credit for negative reserve balances to digital phonorecord deliveries. Assuming there is statutory authority to allow the application of credits for negative reserve balances to the “net balance” owed, are there reasons to limit the application of credits for negative reserve balances to physical phonorecords? If licensees should be allowed to apply credits for negative reserve balances to royalties due for digital uses, should the credits for negative reserve balances be calculated on a per work basis or should the regulations permit the application of credits for negative reserve balances to be cross-collaterialized to royalties due to a particular copyright owner for different works? And, in what form should such regulations be established?

C. Degree of Rounding for Decimal Points

For purposes of consistency, the Copyright Office would like to address the degree of rounding appropriate when computing the royalty in the Statements of Account. It appears that the appropriate per work royalty allocation, in terms of the number of decimal places, is undetermined. Fractions of a penny can quickly add up to substantial sums of money if the volume of transactions is high. Consequently, the Office requests suggestions as to the degree of rounding that would be appropriate for reporting royalties associated with limited downloads, interactive streams, and incidental digital phonorecord deliveries made under the compulsory license. In considering the appropriate level for reporting royalty fees, the Office notes that past rates for the public performance of sound recordings and for ephemeral recordings have been set out to between four and six decimal places based upon a fraction of a dollar rate. See 17 CFR 380.3. Consideration should be given to whether a variance can be allowed based on the system of accounting, or whether reporting to a certain decimal place should be completely uniform.

The current regulations for section 115 provide that the Statements of Account shall be “served on the copyright owner or the agent with authority to receive Monthly Statements of Account on behalf of the copyright owner to whom or which it is directed, together with the total royalty for the month covered by the Monthly Statement, by mail or by reputable courier service.” 37 CFR 201.19(e)(7)(i). The Stakeholders have informed the Office that they agree in principle that a compulsory licensee should be able to make royalty payments by electronic funds transfer if the copyright owner and compulsory licensee (or its agent) so agree, regardless of the means of delivery of Statements of Account. They also agreed that when both the Monthly Statement of Account and payment are sent by mail or courier service, they should be sent together; otherwise they should be sent contemporaneously.

In light of the general agreement by the Stakeholders regarding payment, the Office proposes to maintain the current default requirement that payment be sent by mail or courier service. The Office also proposes to allow copyright owners and licensees to agree to alternatives to the current default methods of payment through mail or courier service. Finally, the Office proposes to maintain the requirement that when both the Monthly Statement of Account and payment are sent by mail or courier service, they should be sent together and that otherwise they should be sent contemporaneously. The Copyright Office requests comments on these proposals.

B. Electronic Statements of Account

The Stakeholders generally support the idea that the Office's section 115 regulations should permit electronic delivery of Statements of Account. However, the Stakeholders were not able to agree on the circumstances, if any, in which it should be mandatory for compulsory licensees to provide, and copyright owners to accept, Statements of Account by electronic means.

Copyright owners who have expressed an opinion to the Office on this topic support mandatory electronic reporting as a general default rule for both copyright owners and compulsory licensees. They would allow however that if any copyright owner, or its agent, does not, in the ordinary course of operating its business, conduct business via the internet, or if a compulsory licensee or its agent does not make a printable and electronically downloadable version available by posting such Statements of Account to a password-protected internet account created for the copyright owner or its agent, the copyright owner or its agent may request, and the compulsory licensee shall provide, paper Statements of Account.

Representatives of digital music services (DiMA) and licensing services (MRI, RightsFlow) support the default rule proposed by copyright owners. However, they take no position as to the need for electronic reporting between record companies and publishers, noting that consideration should be made for the unique historical business practices between record labels and publishers.

Record labels believe that the Office should not require record companies doing their own reporting to transition to electronic reporting on any particular timetable. They pointed out that in cases where neither the record company nor the publisher has felt a need to abandon paper-based processes that have worked for decades, forcing such a transition would be a massive and highly disruptive process. As such they urge that electronic reporting should be a permissible option, unless the copyright owner indicates that it would rather stick with paper reporting.

The Office is not persuaded that it is wise to compel copyright owners to accept and licensees to serve Statements of Account via an electronic transmission as a default rule. The Office is concerned that, as a practical matter, many copyright owners may not be equipped to accept Statements of Account in this manner. As such, the Office proposes to maintain the current requirement that Statements of Account be sent by mail or courier service as a default rule.

However, the Office does understand that in many cases a copyright owner may reasonably wish to compel certain licensees, who submit voluminous Statements of Account, to serve them in electronic format. The Office notes that the regulations for filing Notices of Intention to use the compulsory license allows for filing the Notice electronically and for copyright owners to require submission of Notices of Intention in an electronic format in the case where the Notice covers more than 50 musical works. 37 CFR 201.18(f)(6). Section 201.18(a)(7) also allows copyright owners to offer alternative means for service, including by means of electronic transmission. The Office has adopted these rules to increase efficiencies for both the copyright owners and the licensees and has provided an exception to the requirement for a handwritten signature when service is made electronically. Because these rules appear to be working well and offer flexibility for electronic submissions of Notices, the Office proposes adopting parallel provisions for filing a Statement of Account, whereby copyright owners may require a licensee submitting a Statement of Account covering more than 50 works to provide the copyright owner with an electronic copy of the Statement of Account, and whereby a copyright owner may make known its willingness to accept Statements of Account and payment by means of electronic transmission. Furthermore, the Office proposes an exception to the requirement for a handwritten signature when service is made electronically, and a new provision for retention of records that support certification of Statements of Account that are served electronically. The Copyright Office requests comments on these proposals regarding submission of Statements of Account in electronic format and by electronic transmission. Additionally, the Office would like to know whether there are copyright owners that prefer paper statements and to what extent digital reporting has become the normal course of business.

C. Minimum Amount for Payment

The royalty formula is based on a percentage of income or based on the number of plays for each work. In some cases, either when revenue is small or a particular work has not received many plays, the royalty owed for payment is nominal. The Copyright Office is aware that the transactional efforts and costs to provide payment can, in some situations, be more burdensome for both copyright owners and licensees than the actual value of the payment.

It has been suggested that a minimum Monthly Statement of Account threshold should be met before payment is due in order to make processing payment for the Statements of Account more manageable. The Stakeholders have suggested that a royalty amount of at least 50 dollars should be owed to a copyright owner before payments are made, and Monthly Statements of Account are required, unless the copyright owner requests otherwise.

The question is whether this proposal is permissible under the statute. The statute states that “royalty payments shall be made on or before the 20th of each month and shall include all royalties for the month next proceeding” 17 U.S.C. 115(c)(5). This language seems to preclude setting a minimum amount for payment, and to date the Office has not adopted regulations to defer de minimis payment nor has any party raised this issue.

Interest, however, does exist today to consider regulations that would defer payment of royalties until the amount owed reached an established level as a way to avoid overly burdensome costs for making payments valued at less than the cost of making the payment. The Copyright Office requests comments on whether it has authority to adopt such a regulation and whether (and if so, why and how) the minimum payment issue should be addressed.

Promotional Digital Phonorecord Deliveries are often an important tool for record labels and services to attract new listeners, create awareness about a particular artist, and increase plays. The regulation adopted by the Copyright Royalty Judges in 37 CFR 385.14 establishes a royalty rate of zero for certain promotional digital phonorecord deliveries when they are offered for free trial periods to promote the sale or other paid use of sound recordings. Also see proposed 37 CFR 385.24, Free Trial Periods. Even though no royalty is owed in these circumstances, it is unclear whether licensees should give a full accounting of all the phonorecords made under the license in the Statement of Account. The Stakeholders feel that it is unnecessary to report promotional digital phonorecord deliveries in the Statements of Account.

Nevertheless, the proposed regulations require a licensee to report all phonorecords made and distributed under the section 115 license including digital promotional deliveries. This requirement would not seem to be a hardship on the licensees in light of the proposed recordkeeping requirement for the new trial periods applicable to limited offerings, mixed service bundles, music bundles, paid locker services and purchased content locker services which requires retention of complete and accurate records of the relevant authorization, identification of each sound recording of a musical work made available through the free trial period, the activity involved, and the number of plays and downloads for each recording. See 77 FR 29259, 29269 (May 17, 2012) (proposing new 37 CFR 385.24(a)(4)(i), (b) and (c).

The Copyright Office asks for comments on whether the statute requires that Statements of Account contain play information on promotional digital phonorecord deliveries. Specifically, the Office asks for comments that address the Register's conclusion that “[t]here is no statutory authority for an exception to [the section 115(c)(5)] requirement for certain types of `phonorecords.' ” Review of Copyright Royalty Judges Determination 74 FR 4537, 4543 (January 26, 2009). If the conclusion is that there is no statutory requirement, comments should address whether digital phonorecords offered at a promotional rate or for a free trial period should be reported and with what frequency, e.g., monthly or annually.

B. Reporting the Identification of Third Party Licensees

While the Statement of Account provisions require detailed information as to the number of plays, neither the current Statement of Account provisions nor the proposed regulations require licensees to account for the location of the place of origin of the plays. The Copyright Office is aware that in many instances third parties make and distribute the phonorecords under the authority of the licensee and that different opinions exist as to whether the regulations should require the identification of these parties.

Copyright Owner stakeholders favor amending the regulations to require compulsory licensees to report on the number of Digital Phonorecord Deliveries made by each third party service operating under their authority. They believe that this information is necessarily available to compulsory licensees who need to rely on this information in order to assess whether their accounting statements are accurate. Copyright owners assert that such information should not be kept from them and that they should be able to use the information to assess the usage and payment for their works. Furthermore, since Digital Phonorecord Deliveries are tracked electronically, they feel it is reasonable and feasible for record companies to provide this information, and believe it will ensure transparency in the digital environment.

Licensee stakeholders have a different view. They note that identifying distributors has never been required, and nothing in the Copyright Royalty Judges' determination requires imposing such new requirements for Digital Phonorecord Delivery configurations other than interactive streams and limited downloads. Moreover, they maintain that the regulations should not be amended to require this information because it would impose substantial costs on the licensees to provide unnecessary information since the Statement of Account provisions require an annual audit by a CPA to ensure reliability.

MRI, an independent licensing agent, has informed the Office that it has the ability to report the identification of the distributor, except where licensees are unable to supply the information to them and would support an agreement among the Stakeholders requiring the identification of third party distributors on statements when those statements are prepared by common agents. It did, however, have some reservations about an absolute requirement and suggested that where its principals may be unable to provide this information, some leniency should be given. This may be the case where distribution statements through third party distributors/aggregators fail to provide information to the record companies, or due to other bona fide technological limitations.

The Copyright Office would like comments concerning the views set forth above and how the alternatives could potentially affect copyright owners and licensees. To what degree would these requirements burden or benefit licensees and copyright owners?

C. Certification Language

The certification statement in 37 CFR 201.19 is meant to provide additional assurance to the copyright owner that the Statements of Account are reliable and truthful. “The Register shall also prescribe regulations under which detailed cumulative Annual Statements of Account, certified by a certified public accountant, shall be filed for every compulsory license under this section.” 17 U.S.C. 115(c)(5). When 17 U.S.C. 115 was first implemented by Congress, the CPA requirement was included with the intention of ensuring accurate payment to copyright owners. Congress, however, recognized that a balance was necessary. “Neither the record-keeping nor the CPA audit requirements should be so burdensome or expensive as to undermine the Congressional intention by putting compulsory licensing out of the reach of record companies.” 45 FR at 79039.

The Office has previously been urged to provide that the language of the CPA certification required in Annual Statements of Account is “illustrative” rather than required. The Office declined such a course and instead required adherence to the existing clear and unambiguous statement, which fulfills Congress's purpose in requiring certification of the Annual Statement. 43 FR at 44515-44516. For purposes of this proposed rulemaking proceeding, the Office has retained the current regulations for certifying a Statement of Account. Nevertheless, the Copyright Office is aware that licensees have expressed interest in adopting alternative methods of certifying the Statement of Account to accommodate large volumes of statements and welcomes suggestions on modifications to the process provided that any proposed alternative form of certification fits within the statutory requirements and complies with the original intentions of the CPA requirement. The CPA requirement should assure that copyright owners receive the royalties to which they are entitled, but the requirement should not burden the licensee to the point that it would prevent the compulsory license from being a practical option for record companies or services. Are there alternative certification methods that satisfy both goals and should be considered by the Office?

D. Adjustment of Timetables for Reporting

The accounting methodology and timetables for reporting overpayments or underpayments were originally set forth to accommodate the penny rate royalty for section 115. Given the increased complexity of calculating royalties for interactive streaming, limited downloads and the proposed new services in the Annual Statement of Account, an extension for statutory licensees to file their Statements of Account appears to be reasonable.

The Stakeholders' preliminary input indicates a general agreement that an extension for the deadline of the Annual Statement of Account would be appropriate because the calculation of interactive streaming/limited download royalties, for example, has increased the complexity of compiling the statement. The Stakeholders suggest extending the deadline from three months after the close of the licensee's fiscal year to six months after the close of the licensee's fiscal year. See 37 CFR 201.19(f)(7)(i). Based on these early discussions, the Office proposes amending its regulations and adopting the later deadline for filing the Annual Statement of Account. The Office requests comments from the relevant parties as to whether this additional time is required to create an accurate Statement of Account for annual statements.

E. Service of Statements of Account for Periods Prior to Enactment of New Regulations

Pursuant to section 115(c)(5), the Office's existing regulations require licensees to serve Monthly and Annual Statements of Account for the making and distribution of phonorecords. As explained in the introduction, the current regulations in § 201.19 are an ill fit for reporting royalties for the new digital phonorecord delivery configurations identified in 37 CFR subpart B and proposed new Subpart C of Part 385 because of the change in the rate structure. Nevertheless, the Office is required to establish regulations to cover these new types of phonorecords, including the establishment of dates for filing the Statements of Account to cover all past reporting periods since the establishment of the new rates set according to regulations, which took effect on March 1, 2009. For that reason, the Office is proposing a new regulation to address the reporting periods prior to the effective date of these regulations. Specifically, the proposed regulations require that Statements of Account for any prior accounting period shall be due 180 days after the date the regulations become effective. This should not be an undue burden on the licensees, since as a matter of good business practice, licensees should have retained the necessary records to make these filings in accordance with the records retention provision the current regulations in § 201.19.

F. Retention of Records (AKA Documentation)

The existing regulations require licensees to keep and retain in their possession all records and documents necessary and appropriate to support fully the information set forth in the Annual Statement of Account and in the Monthly Statements of Accounts for three years from the date of service of such statements. The Stakeholders have agreed in principle that it would be appropriate to extend the general record retention period from three to five years after service of Statements of Account. In light of this agreement among the Stakeholders, the proposed regulations require retention of supporting records for five years after service of Statements of Account. The proposed amendment to this section also addresses situations in which it may be necessary to retain records even longer in the case where public performance rates have not been set at the time of filing the Statements of Account. To that end, the proposed regulation requires retention of records for a period of at least five years from the date of service of an Annual Statement of Account or for a period of at least three years from the date the relevant public performance royalty fees have been set, whichever is longer. Comment on this approach is requested.

G. Harmless Error Provision

Section 201.19 of the Office's regulations provides detailed requirements on how to prepare and file a Statement of Account, along with specific elements that are to be included. This information allows the copyright owner to evaluate the Statements of Account efficiently and aids in ensuring reliability and accuracy. Because of the detailed requirements in the regulations, licensees' accounting statements may contain inadvertent errors.

In the past, harmless error provisions have been adopted in an attempt to protect licensees from infringement liability and loss of their license for inconsequential mistakes. For this reason, a harmless error provision was included in the 2004 Final Rule on Compulsory License for Making and Distributing Phonorecords, Including Digital Phonorecord Deliveries, 69 FR 34578, which amended 37 CFR 201.18 setting forth the requirements for filing a Notice of Intention to obtain a compulsory license. The intent of the harmless error provision with respect to a Notice of Intention was to prevent licensees from losing the right to use the license for errors that did not affect the legal sufficiency of the Notice. 66 FR 45241, 45243. For the Notice of Intention provision, the Office further observed that it would not have any role in resolving the disputes as to whether or not an error was actually harmless, and instead left these disputes to be adjudicated in the courts. Id.

Interested parties representing both copyright owners and licensees have suggested that a harmless error provision should be included in the section 115 regulations. The Copyright Office has reached no preliminary determination on this point and the proposed regulations do not include a harmless error provision. However, the Copyright Office asks for comments on the Office's authority to include a harmless error provision and whether such a provision in Statement of Account regulations would be useful as a way to protect licensees from inadvertent errors that do not materially affect the adequacy of the information provided on the Statement of Account.

H. Confidentiality Provision

The Copyright Office observes that the Stakeholders' newly proposed rates for the compulsory license included provisions requiring that Statements of Account submitted to copyright owners must be kept confidential. While the proposed term illustrates a general desire among licensees and licensors for maintaining confidentiality of information contained in Statements of Account, the Copyright Office questions the need for the broadly framed confidentiality provision in the Proposed rule, Adjustment of Determination of Compulsory License Rates for Mechanical and Digital Phonorecords (77 FR 29259, 29262, May 17, 2012, proposing 37 CFR 385.12(f)).1 The Office notes that the confidentiality provision negotiated by the participants in the rate proceeding does not, for example, accommodate a copyright owner's disclosure in litigation of information provided by a licensee.

1 When the Copyright Royalty Judges published proposed regulations offered by the parties in the ongoing proceeding to set new rates and terms for use of the section 115 compulsory license, they noted that two proposed provisions appeared to exceed the scope of the requirements in the regulations governing Statements of Account and issued under the authority of the Register of Copyrights. 77 FR 29259 (May 17, 2012). They further noted that authority to issue regulations on Statements of Account is “the exclusive domain of the Register.” 77 FR at 29261, citing to Division of Authority Between the Copyright Royalty Judges and the Register of Copyrights under the Section 115 Statutory License, Final order, Docket No. 2008-1, 73 FR 48396, 48398 (January 26, 2009). The Copyright Office agrees. While the Copyright Royalty Judges do not have authority to alter the regulations governing the Statement of Accounts, the Register recognizes the Stakeholders' interest in making the statements confidential and addresses the issue here. Moreover, these proposed Statements of Account regulations would require the licensees to include all calculations on the Statements of Account, as proposed in the rate setting regulations published by the Copyright Office Judges on May 17, 2012 for public comment.

Therefore, the Copyright Office asks for comments as to what would be the appropriate limits to such a requirement, as well as on its authority to require copyright owners to keep information contained in Statements of Account confidential.

Conclusion

The section 115 compulsory license for incidental digital phonorecord delivery and interactive streaming provides a useful tool for record companies and services to further create and distribute content through new technology. The Office is proposing modifications to its regulations that will allow copyright owners to receive a full and accurate accounting of the various types of digital phonorecord deliveries that are made under the section 115 license which are subject to the rates and terms adopted under 17 U.S.C. Chapter 8. Further comments are invited regarding issues relating to this subject that have been not addressed today, but may be relevant to ensure a better system of accounting.

List of Subjects37 CFR Part 201

Copyright.

37 CFR Part 210

Copyright, Phonorecords, Recordings.

Proposed Regulations

For the reasons set forth in the preamble, the Copyright Office proposes amending part 201 and adding part 210 to Chapter II of Title 37 of the Code of Federal Regulations as follows:

PART 201—GENERAL PROVISIONS

1. The authority citation for part 201 continues to read as follows:

Authority:

17 U.S.C. 702.

§ 201.19[Removed and reserved]

2. Remove and reserve § 201.19.

3. Add new part 210 to read as follows:

PART 210—COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHYSICAL AND DIGITAL PHONORECORDS OF NONDRAMATIC MUSICAL WORKSSubpart A—[Reserved]Sec.210.1-210.10[Reserved]Subpart B—Royalties and Statements of Account Under Compulsory License for Physical Phonorecord Deliveries, Permanent Digital Downloads and Ringtones210.11General.210.12Definitions.210.13Accounting requirements where sales revenue is “recognized.”210.14Accounting requirements for offsetting phonorecord reserves with returned phonorecords.210.15Situations in which a compulsory licensee is barred from maintaining reserves.210.16Monthly statements of account.210.17Annual statements of account.210.18Documentation.210.19Timing of filing statements of account.Subpart C—Royalties and Statements of Account Under Compulsory License for Interactive Streaming, Limited Downloads and Other Digital Phonorecord Delivery Services210.21General.210.22Definitions.210.23Monthly statements of account.210.24Annual statements of account.210.25Amended annual statements of account.210.26Documentation.210.27Timing of filing statements of account.Authority:

This subpart prescribes the rules pertaining to the preparation and service of Statements of Account covering compulsory licenses for the making and distribution of phonorecords, including by means of a digital phonorecord delivery, pursuant to 17 U.S.C. 115 and the regulations in 37 CFR part 385 governing rates and terms for use of musical works under compulsory license for the making and distribution of phonorecords.

§ 210.12 Definitions.

As used in this subpart:

(a) A Monthly Statement of Account is a statement accompanying monthly royalty payments identified in 17 U.S.C. 115(c)(5), as amended by Public Law 94-553, and required by that section to be made under the compulsory license to make and distribute phonorecords of nondramatic musical works, including by means of a digital phonorecord delivery.

(b) An Annual Statement of Account is a statement identified in 17 U.S.C 115(c)(5), as amended by Public Law 94-553, and required by that section to be filed for every compulsory license to make and distribute phonorecords of nondramatic musical works.

(c) A “digital phonorecord delivery” is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. The reproduction of the phonorecord must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. Such a phonorecord may be permanent or it may be made available to the transmission recipient for a limited period of time or for a specified number of performances. A digital phonorecord delivery includes all phonorecords that are made for the purpose of making the digital phonorecord delivery.

(d) A “ringtone” means a phonorecord of a partial musical work distributed as a digital phonorecord delivery in a format to be made resident on a telecommunications device for use to announce the reception of an incoming telephone call or other communications or message or to alert the receiver to the fact that there is a communication or message.

(e) The term copyright owner, in the case of any work having more than one copyright owner, means any one of the co-owners.

(f) The service of a Statement of Account on a copyright owner under this subpart may be accomplished by means of service on either the copyright owner or an agent of the copyright owner with authority to receive Statements of Account on behalf of the copyright owner. In the case where the work has more than one copyright owner, the service of the Statement of Account on one co-owner or upon an agent of one of the co-owners shall be sufficient with respect to all co-owners.

(g) A compulsory licensee is a person or entity exercising the compulsory license to make and distribute phonorecords of nondramatic musical works as provided under 17 U.S.C. 115, including by means of a digital phonorecord delivery.

(h) A digital phonorecord delivery shall be treated as a type of phonorecord configuration, and a digital phonorecord delivery shall be treated as a phonorecord, with the following clarifications:

(1) A digital phonorecord delivery shall be treated as a phonorecord made and distributed on the date the phonorecord is digitally transmitted; and

(2) A digital phonorecord delivery shall be treated as having been voluntarily distributed and relinquished from possession, and a compulsory licensee shall be treated as having permanently parted with possession of a digital phonorecord delivery, on the date that the phonorecord is digitally transmitted.

(i) Except as provided in paragraph (h) of this section, a phonorecord is considered voluntarily distributed if the compulsory licensee has voluntarily and permanently parted with possession of the phonorecord. For this purpose, and subject to the provisions of paragraph (d) of this section, a compulsory licensee shall be considered to have “permanently parted with possession” of a phonorecord made under the license:

(1) In the case of phonorecords relinquished from possession for purposes other than sale, at the time at which the compulsory licensee actually first parts with possession;

(2) In the case of phonorecords relinquished from possession for purposes of sale without a privilege of returning unsold phonorecords for credit or exchange, at the time at which the compulsory licensee actually first parts with possession;

(3) In the case of phonorecords relinquished from possession for purposes of sale accompanied by a privilege of returning unsold phonorecords for credit or exchange:

(i) At the time when revenue from a sale of the phonorecord is “recognized” by the compulsory licensee; or

(ii) Nine months from the month in which the compulsory licensee actually first parted with possession, whichever occurs first. For these purposes, a compulsory licensee shall be considered to “recognize” revenue from the sale of a phonorecord when sales revenue would be recognized in accordance with generally accepted accounting principles as expressed by the American Institute of Certified Public Accountants or the Financial Accounting Standards Board, whichever would cause sales revenue to be recognized first.

(j) To the extent that the terms reserve, credit and return appear in this section, such provisions shall not apply to digital phonorecord deliveries.

(k) A phonorecord reserve comprises the number of phonorecords, if any, that have been relinquished from possession for purposes of sale in a given month accompanied by a privilege of return, as described in paragraph (i)(3) of this section, and that have not been considered voluntarily distributed during the month in which the compulsory licensee actually first parted with their possession. The initial number of phonorecords comprising a phonorecord reserve shall be determined in accordance with generally accepted accounting principles as expressed by the American Institute of Certified Public Accountants or the Financial Accounting Standards Board.

(l) A negative reserve balance comprises the aggregate number of phonorecords, if any, that have been relinquished from possession for purposes of sale accompanied by a privilege of return, as described in paragraph (i)(3) of this section, and that have been returned to the compulsory licensee, but because all available phonorecord reserves have been eliminated, have not been used to reduce a phonorecord reserve.

(m) An incomplete transmission is any digital transmission of a sound recording which, as determined by means within the sole control of the distributor, does not result in a specifically identifiable reproduction of the entire sound recording by or for any transmission recipient.

(n) A retransmission is a subsequent digital transmission of the same sound recording initially transmitted to an identified recipient for the purpose of completing the delivery of a complete and usable reproduction of that sound recording to that recipient.

§ 210.13 Accounting requirements where sales revenue is “recognized.”

Where under § 210.12(i)(3)(i), revenue from the sale of phonorecords is “recognized” during any month after the month in which the compulsory licensee actually first parted with their possession, said compulsory licensee shall reduce particular phonorecord reserves by the number of phonorecords for which revenue is being “recognized,” as follows:

(a) If the number of phonorecords for which revenue is being “recognized” is smaller than the number of phonorecords comprising the earliest eligible phonorecord reserve, this phonorecord reserve shall be reduced by the number of phonorecords for which revenue is being “recognized.” Subject to the time limitations of § 210.12(i)(3)(ii), the number of phonorecords remaining in this reserve shall be available for use in subsequent months.

(b) If the number of phonorecords for which revenue is being “recognized” is greater than the number of phonorecords comprising the earliest eligible phonorecord reserve but less than the total number of phonorecords comprising all eligible phonorecord reserves, the compulsory licensee shall first eliminate those phonorecord reserves, beginning with the earliest eligible phonorecord reserve and continuing to the next succeeding phonorecord reserves, that are completely offset by phonorecords for which revenue is being “recognized.” Said licensee shall then reduce the next succeeding phonorecord reserve by the number of phonorecords for which revenue is being “recognized” that have not been used to eliminate a phonorecord reserve. Subject to the time limitations of § 210.12(i)(3)(ii), the number of phonorecords remaining in this reserve shall be available for use in subsequent months.

(c) If the number of phonorecords for which revenue is being “recognized” equals the number of phonorecords comprising all eligible phonorecord reserves, the person or entity exercising the compulsory license shall eliminate all of the phonorecord reserves.

(a) In the case of a phonorecord that has been relinquished from possession for purposes of sale accompanied by a privilege of return, as described in § 210.12(i)(3), where the phonorecord is returned to the compulsory licensee for credit or exchange before said compulsory licensee is considered to have “permanently parted with possession” of the phonorecord under § 210.12(i), the compulsory licensee may use such phonorecord to reduce a “phonorecord reserve,” as defined in § 210.12(k).

(b) In such cases, the compulsory licensee shall reduce particular phonorecord reserves by the number of phonorecords that are returned during the month covered by the Monthly Statement of Account in the following manner:

(1) If the number of phonorecords that are returned during the month covered by the Monthly Statement is smaller than the number comprising the earliest eligible phonorecord reserve, the compulsory licensee shall reduce this phonorecord reserve by the total number of returned phonorecords. Subject to the time limitations of § 210.12(i)(3), the number of phonorecords remaining in this reserve shall be available for use in subsequent months.

(2) If the number of phonorecords that are returned during the month covered by the Monthly Statement is greater than the number of phonorecords comprising the earliest eligible phonorecord reserve but less than the total number of phonorecords comprising all eligible phonorecord reserves, the compulsory licensee shall first eliminate those phonorecord reserves, beginning with the earliest eligible phonorecord reserve, and continuing to the next succeeding phonorecord reserves, that are completely offset by returned phonorecords. Said licensee shall then reduce the next succeeding phonorecord reserve by the number of returned phonorecords that have not been used to eliminate a phonorecord reserve. Subject to the time limitations of § 210.12(i)(3)(ii), the number of phonorecords remaining in this reserve shall be available for use in subsequent months.

(3) If the number of phonorecords that are returned during the month covered by the Monthly Statement is equal to or is greater than the total number of phonorecords comprising all eligible phonorecord reserves, the compulsory licensee shall eliminate all eligible phonorecord reserves. Where said number is greater than the total number of phonorecords comprising all eligible phonorecord reserves, said compulsory licensee shall establish a “negative reserve balance,” as defined in § 210.12(l).

(c) Except where a negative reserve balance exists, a separate and distinct phonorecord reserve shall be established for each month during which the compulsory licensee relinquishes phonorecords from possession for purposes of sale accompanied by a privilege of return, as described in § 210.12(i)(3) of this section. In accordance with paragraph (ii) of § 210.12(i)(3), any phonorecord remaining in a particular phonorecord reserve nine months from the month in which the particular reserve was established shall be considered “voluntarily distributed”; at that point, the particular monthly phonorecord reserve shall lapse and royalties for the phonorecords remaining in it shall be paid as provided in § 210.16(d).

(d) Where a negative reserve balance exists, the aggregate total of phonorecords comprising it shall be accumulated into a single balance rather than being separated into distinct monthly balances. Following the establishment of a negative reserve balance, any phonorecords relinquished from possession by the compulsory licensee for purposes of sale or otherwise, shall be credited against such negative balance, and the negative reserve balance shall be reduced accordingly. The nine-month limit provided by § 210.12(i)(3)(ii) shall have no effect upon a negative reserve balance; where a negative reserve balance exists, relinquishment from possession of a phonorecord by the compulsory licensee at any time shall be used to reduce such balance, and shall not be considered a “voluntary distribution” within the meaning of § 210.12(i).

(e) In no case shall a phonorecord reserve be established while a negative reserve balance is in existence; conversely, in no case shall a negative reserve balance be established before all available phonorecord reserves have been eliminated.

§ 210.15 Situations in which a compulsory licensee is barred from maintaining reserves.

Notwithstanding any other provisions of this section, in any case where, within three years before the phonorecord was relinquished from possession, the compulsory licensee has had final judgment entered against it for failure to pay royalties for the reproduction of copyrighted music on phonorecords, or within such period has been definitively found in any proceeding involving bankruptcy, insolvency, receivership, assignment for the benefit of creditors, or similar action, to have failed to pay such royalties, that compulsory licensee shall be considered to have “Permanently parted with possession” of a phonorecord made under the license at the time at which that licensee actually first parts with possession. For these purposes the “compulsory licensee,” as defined in § 210.12(g), shall include:

(a) In the case of any corporation, the corporation or any director, officer, or beneficial owner of twenty-five percent (25%) or more of the outstanding securities of the corporation;

(b) In all other cases, any entity or individual owning a beneficial interest of twenty-five percent (25%) or more in the entity exercising the compulsory license.

§ 210.16 Monthly statements of account.

(a) Forms. The Copyright Office does not provide printed forms for the use of persons serving Monthly Statements of Account.

(b) General content. A Monthly Statement of Account shall be clearly and prominently identified as a “Monthly Statement of Account Under Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:

(1) The period (month and year) covered by the Monthly Statement;

(2) The full legal name of the compulsory licensee, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords;

(3) The full address, including a specific number and street name or rural route, of the place of business of the compulsory licensee. A post office box or similar designation will not be sufficient for this purpose, except where it is the only address that can be used in that geographic location;

(4) The title or titles of the nondramatic musical work or works embodied in phonorecords made under the compulsory license and owned by the copyright owner being served with the Monthly Statement and the name of the author or authors of such work or works, if known;

(5) For each nondramatic musical work that is owned by the same copyright owner being served with the Monthly Statement and that is embodied in phonorecords covered by the compulsory license, a detailed statement of all of the information called for in paragraph (c) of this section;

(6) The total royalty payable for the month covered by the Monthly Statement, computed in accordance with the requirements of this section and the formula specified in paragraph (d) of this section, together with a Statement of Account showing in detail how the royalty was computed; and

(7) In any case where the compulsory licensee falls within the provisions of § 210.15, a clear description of the action or proceeding involved, including the date of the final judgment or definitive finding described in that paragraph.

(c) Specific content of monthly statements: Identification and accounting of phonorecords. (1) The information called for by paragraph (b)(5) of this section shall, with respect to each nondramatic musical work, include a separate listing of each of the following items of information:

(i) The number of phonorecords, including digital phonorecord deliveries, made during the month covered by the Monthly Statement;

(ii) The number of phonorecords that, during the month covered by the Monthly Statement and regardless of when made, were either:

(A) Relinquished from possession for purposes other than sale;

(B) Relinquished from possession for purposes of sale without any privilege of returning unsold phonorecords for credit or exchange;

(C) Relinquished from possession for purposes of sale accompanied by a privilege of returning unsold phonorecords for credit or exchange;

(D) Returned to the compulsory licensee for credit or exchange;

(E) Placed in a phonorecord reserve (except that if a negative reserve balance exists give either the number of phonorecords added to the negative reserve balance, or the number of phonorecords relinquished from possession that have been used to reduce the negative reserve balance);

(F) Never delivered due to a failed transmission; or

(G) Digitally retransmitted in order to complete a digital phonorecord delivery.

(iii) The number of phonorecords, regardless of when made, that were relinquished from possession during a month earlier than the month covered by the Monthly Statement but that, during the month covered by the Monthly Statement either have had revenue from their sale “recognized” under § 210.12(i)(3)(i), or were comprised in a phonorecord reserve that lapsed after nine months under § 210.12(i)(3)(ii).

(2) Each of the items of information called for by paragraph (c)(1) of this section shall also include, and if necessary shall be broken down to identify separately, the following:

(i) The catalog number or numbers and label name or names, used on the phonorecords;

(ii) The names of the principal recording artist or group engaged in rendering the performances fixed on the phonorecords;

(iii) The playing time on the phonorecords of each nondramatic musical work covered by the statement; and

(d) Royalty payment and accounting. (1) The total royalty called for by paragraph (b)(6) of this section shall be payable for every phonorecord “voluntarily distributed” during the month covered by the Monthly Statement.

(2) The amount of the royalty payment shall be calculated in accordance with the following formula:

(i) Step 1: Compute the number of phonorecords shipped for sale with a privilege of return. This is the total of phonorecords that, during the month covered by the Monthly Statement, were relinquished from possession by the compulsory licensee, accompanied by the privilege of returning unsold phonorecords to the compulsory licensee for credit or exchange. This total does not include:

(A) Any phonorecords relinquished from possession by the compulsory licensee for purposes of sale without the privilege of return; and

(B) Any phonorecords relinquished from possession for purposes other than sale.

(ii) Step 2: Subtract the number of phonorecords reserved. This involves deducting, from the subtotal arrived at in Step 1, the number of phonorecords that have been placed in the phonorecord reserve for the month covered by the Monthly Statement. The number of phonorecords reserved is determined by multiplying the subtotal from Step 1 by the percentage reserve level established under Generally Accepted Accounting Practices. This step should be skipped by a compulsory licensee barred from maintaining reserves under § 210.15.

(iii) Step 3: Add the total of all phonorecords that were shipped during the month and were not counted in Step 1. This total is the sum of two figures:

(1) The number of phonorecords that, during the month covered by the Monthly Statement, were relinquished from possession by the compulsory licensee for purposes of sale, without the privilege of returning unsold phonorecords to the compulsory licensee for credit or exchange; and

(2) The number of phonorecords relinquished from possession by the compulsory licensee, during the month covered by the Monthly Statement, for purposes other than sale.

(iv) Step 4: Make any necessary adjustments for sales revenue “recognized,” lapsed reserves, or reduction of negative reserve balance during the month. If necessary, this step involves adding to or subtracting from the subtotal arrived at in Step 3 on the basis of three possible types of adjustments:

(A) Sales revenue “recognized.” If, in the month covered by the Monthly Statement, the compulsory licensee “recognized” revenue from the sale of phonorecords that had been relinquished from possession in an earlier month, the number of such phonorecords is added to the Step 3 subtotal;

(B) Lapsed reserves. If, in the month covered by the Monthly Statement, there are any phonorecords remaining in the phonorecord reserve for the ninth previous month (that is, any phonorecord reserves from the ninth previous month that have not been offset under FOFI, the first-out-first-in accounting convention, by actual returns during the intervening months), the reserve lapses and the number of phonorecords in it is added to the Step 3 subtotal.

(C) Reduction of negative reserve balance. If, in the month covered by the Monthly Statement, the aggregate reserve balance for all previous months is a negative amount, the number of phonorecords relinquished from possession by the compulsory licensee during that month and used to reduce the negative reserve balance is subtracted from the Step 3 subtotal.

(D) Incomplete transmissions. If, in the month covered by the Monthly Statement, there are any digital transmissions of a sound recording which do not result in specifically identifiable reproductions of the entire sound recording by or for any transmission recipient, as determined by means within the sole control of the distributor, the number of such phonorecords is subtracted from the Step 3 subtotal.

(E) Retransmitted digital phonorecords. If, in the month covered by the Monthly Statement, there are retransmissions of a digital phonorecord to a recipient who did not receive a complete and usable phonorecord during an initial transmission, and such transmissions are made for the sole purpose of delivering a complete and usable reproduction of the initially requested sound recording to that recipient, the number of such retransmitted digital phonorecords is subtracted from the Step 3 subtotal.

(v) Step 5: Multiply by the statutory royalty rate. The total monthly royalty payment is obtained by multiplying the subtotal from Step 3, as adjusted if necessary by Step 4, by the statutory royalty rate of 9.1 cents or 1.75 cents per minute or fraction of playing time, whichever is larger for every physical phonorecord delivery and permanent digital download, and by the statutory royalty rate of 24.0 cents for every ringtone made and distributed.

(3) Each step in computing the monthly payment, including the arithmetical calculations involved in each step, shall be set out in detail in the Monthly Statement.

(e) Clear statements. The information required by paragraphs (b) and (c) of this section requires intelligible, legible, and unambiguous statements in the Monthly Statements of Account without incorporation of facts or information contained in other documents or records.

(i) The printed or typewritten name of the person who is the licensee certifying the Monthly Statement of Account;

(ii) If the compulsory licensee is a partnership or a corporation, by the title or official position held in the partnership or corporation by the person certifying the Monthly Statement of Account;

(iii) The date of certification;

(iv) A statement of the capacity of the person making the certification; and

(v) The following statement:

I certify that I have examined this Monthly Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith.

(2) If the Monthly Statement of Account is served by mail or by reputable courier service, certification of the Monthly Statement of Account by the licensee shall be made by handwritten signature. If the compulsory licensee is a corporation, the signature shall be that of a duly authorized officer of the corporation; if the compulsory licensee is a partnership, the signature shall be that of a partner.

(3) If the Monthly Statement of Account is served electronically, the licensee and the copyright owner shall establish a procedure to verify that the certification of the Monthly Statement of Account by the licensee is made upon proper authority.

(g) Service. (1) Each Monthly Statement of Account shall be served on the copyright owner or the agent with authority to receive Monthly Statements of Account on behalf of the copyright owner to whom or which it is directed, together with the total royalty for the month covered by the Monthly Statement, by mail or by reputable courier service on or before the 20th day of the immediately succeeding month. However, in the case where the licensee has served its Notice of Intention upon an agent of the copyright owner pursuant to § 201.18 of this chapter, the licensee is not required to serve Monthly Statements of Account or make any royalty payments until the licensee receives from the agent with authority to receive the Notice of Intention notice of the name and address of the copyright owner or its agent upon whom the licensee shall serve Monthly Statements of Account and the monthly royalty fees. Upon receipt of this information, the licensee shall serve Monthly Statements of Account and all royalty fees covering the intervening period upon the person or entity identified by the agent with authority to receive the Notice of Intention by or before the 20th day of the month following receipt of the notification. It shall not be necessary to file a copy of the Monthly Statement in the Copyright Office.

(2)(i) In any case where a Monthly Statement of Account is sent by mail or reputable courier service and the Monthly Statement of Account is returned to the sender because the copyright owner or agent is no longer located at that address or has refused to accept delivery, or in any case where an address for the copyright owner is not known, the Monthly Statement of Account, together with any evidence of mailing or attempted delivery by courier service, may be filed in the Licensing Division of the Copyright Office. Any Monthly Statement of Account submitted for filing in the Copyright Office shall be accompanied by a brief statement of the reason why it was not served on the copyright owner. A written acknowledgment of receipt and filing will be provided to the sender.

(ii) The Copyright Office will not accept any royalty fees submitted with Monthly Statements of Account under this section.

(iii) Neither the filing of a Monthly Statement of Account in the Copyright Office, nor the failure to file such Monthly Statement, shall have effect other than that which may be attributed to it by a court of competent jurisdiction.

(iv) No filing fee will be required in the case of Monthly Statements of Account submitted to the Copyright Office under this section. Upon request and payment of the fee specified in § 201.3(e) of this chapter, a Certificate of Filing will be provided to the sender.

(3) A separate Monthly Statement of Account shall be served for each month during which there is any activity relevant to the payment of royalties under 17 U.S.C. 115, and under this subpart. The Annual Statement of Account identified in § 210.17 of this subpart does not replace any Monthly Statement of Account.

(4) If a Monthly Statement of Account is sent by certified mail or registered mail, a mailing receipt shall be sufficient to prove that service was timely. If a Monthly Statement of Account is delivered by a reputable courier, documentation from the courier showing the first date of attempted delivery shall also be sufficient to prove that service was timely. In the absence of a receipt from the United States Postal Service showing the date of delivery or documentation showing the first date of attempted delivery by a reputable courier, the compulsory licensee shall bear the burden of proving that the Monthly Statement of Account was served in a timely manner.

(5) If a Monthly Statement of Account covers reporting for more than 50 works that are embodied in phonorecords made under the compulsory license, the copyright owner or the authorized agent may send the licensee a demand that the Monthly Statement of Account be resubmitted in an electronic format and that future Statements of Account be submitted in an electronic format. The statement may be submitted on a data storage medium widely used at the time for electronic storage of data, in the form of a flat file, word processing document or spreadsheet readable with computer software in wide use at such time, with the required information identified and/or delimited so as to be readily discernible. The Statement of Account may be submitted by means of electronic transmission (such as email) if the demand from the copyright owner or authorized agent states that such submission will be accepted. As provided in paragraph (f) of this section, the licensee and the copyright owner shall establish a procedure to verify that the certification portion of the statement is made upon the authority of the licensee.

(6) The copyright owner and the licensee or authorized agent may agree upon alternative methods of payment, provided that when the Monthly Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Monthly Statements of Account shall be sent and payment shall be made on or before the 20th day of each month and shall include all royalties for the month next proceeding. Any Monthly Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g)(1) of this section regarding service by mail or by reputable courier service of the Monthly Statements of Account together with the total royalty for the month covered by the Monthly Statement.

(7) For purposes of this section, a copyright owner or an agent of a copyright owner with authority to receive a Monthly Statement of Account may make public a written policy that it will accept a Monthly Statement of Account by means of electronic transmission and include in that written policy procedures for making royalty payments. When the Monthly Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Monthly Statements of Account shall be sent and payment shall be made on or before the 20th day of each month and shall include all royalties for the month next proceeding. Any Monthly Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g)(1) of this section regarding service by mail or by reputable courier service of the Monthly Statements of Account together with the total royalty for the month covered by the Monthly Statement.

§ 210.17 Annual statements of account.

(a) Forms. The Copyright Office does not provide printed forms for the use of persons serving Annual Statements of Account.

(b) Annual period. Any Annual Statement of Account shall cover the full fiscal year of the compulsory licensee.

(c) General content. An Annual Statement of Account shall be clearly and prominently identified as an “Annual Statement of Account Under Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:

(1) The fiscal year covered by the Annual Statement;

(2) The full legal name of the compulsory licensee, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords;

(3) If the compulsory licensee is a business organization, the name and title of the chief executive officer, managing partner, sole proprietor or other person similarly responsible for the management of such entity.

(4) The full address, including a specific number and street name or rural route, or the place of business of the compulsory licensee. A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location;

(5) The title or titles of the nondramatic musical work or works embodied in phonorecords made under the compulsory license and owned by the copyright owner being served with the Annual Statement and the name of the author or authors of such work or works, if known;

(6) The playing time of each nondramatic musical work on such phonorecords;

(7) For each nondramatic musical work that is owned by the same copyright owner being served with the Annual Statement and that is embodied in phonorecords covered by the compulsory license, a detailed statement of all of the information called for in paragraph (d) of this section;

(8) The total royalty payable for the fiscal year covered by the Annual Statement computed in accordance with the requirements of this section, together with a statement of account showing in detail how the royalty was computed. For these purposes, the applicable royalty as specified in § 385.3 shall be payable for every phonorecord “voluntarily distributed” during the fiscal year covered by the Annual Statement;

(9) The total sum paid under Monthly Statements of Account by the compulsory licensee to the copyright owner being served with the Annual Statement during the fiscal year covered by the Annual Statement; and

(10) In any case where the compulsory license falls within the provisions of § 210.15, a clear description of the action or proceeding involved, including the date of the final judgment or definitive finding described in that paragraph.

(d) Specific content of annual statements: Identification and accounting of phonorecords. (1) The information called for by paragraph (c)(7) of this section shall, with respect to each nondramatic musical work, include a separate listing of each of the following items of information separately stated and identified for each phonorecord configuration (for example, single disk, long playing disk, cartridge, cassette, or reel-to-reel) made:

(i) The number of phonorecords made through the end of the fiscal year covered by the Annual Statement, including any made during earlier years;

(ii) The number of phonorecords which have never been relinquished from possession of the compulsory licensee through the end of the fiscal year covered by the Annual Statement;

(iii) The number of phonorecords involuntarily relinquished from possession (as through fire or theft) of the compulsory licensee during the fiscal year covered by the Annual Statement and any earlier years, together with a description of the facts of such involuntary relinquishment;

(iv) The number of phonorecords “voluntarily distributed” by the compulsory licensee during all years before the fiscal year covered by the Annual Statement;

(v) The number of phonorecords relinquished from possession of the compulsory licensee for purposes of sale during the fiscal year covered by the Annual Statement accompanied by a privilege of returning unsold records for credit or exchange, but not “voluntarily distributed” by the end of that year;

(vi) The number of phonorecords “voluntarily distributed” by the compulsory licensee during the fiscal year covered by the Annual Statement, together with:

(A) The catalog number or numbers, and label name or names, used on such phonorecords; and

(B) The names of the principal recording artists or groups engaged in rendering the performances fixed on such phonorecords.

(2) If the information given under paragraph (d)(1)(i) through (vi) of this section does not reconcile, the Annual Statement shall also include a clear and detailed explanation of the difference. For these purposes, the information given under such paragraphs shall be considered not to reconcile if, after the number of phonorecords given under paragraphs (d)(1)(ii), (iii), (iv) and (v) of this section are added together and that sum is deducted from the number of phonorecords given under paragraph (d)(1)(i), the result is different from the amount given under paragraph (d)(1)(vi).

(e) Clear statement. The information required by paragraph (c) of this section requires intelligible, legible, and unambiguous statements in the Annual Statement of Account without incorporation by reference of facts or information contained in other documents or records.

(i) The printed or typewritten name of the person who is the licensee certifying the Annual Statement of Account;

(ii) The date of certification;

(iii) If the compulsory licensee is a partnership or a corporation, the title or official position held in the partnership or corporation who is making the certification;

(iv) A statement of the capacity of the person making the certification; and

(v) The following statement:

I certify that I have examined this Annual Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith.

(2)(i) Each Annual Statement of Account shall also be certified by a licensed Certified Public Accountant. Such certification shall consist of the following statement.

We have examined the attached “Annual Statement of Account Under Compulsory License For Making and Distributing Phonorecords” for the fiscal year ended (date) of (name of the compulsory licensee) applicable to phonorecords embodying (title or titles of nondramatic musical works embodied in phonorecords made under the compulsory license) made under the provisions of 17 U.S.C. 115, as amended by Public Law 94-553, and applicable regulations of the United States Copyright Office. Our examination was made in accordance with generally accepted auditing standards and accordingly, included tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances.

In our opinion the Annual Statement of Account referred to above presents fairly the number of phonorecords embodying each of the above-identified nondramatic musical works made under compulsory license and voluntarily distributed by (name of the compulsory licensee) during the fiscal year ending (date), and the amount of royalties applicable thereto under such compulsory license, on a consistent basis and in accordance with the above cited law and applicable regulations published thereunder.

(City and State of Execution)(Signature of Certified Public Accountant or CPA Firm)Certificate NumberJurisdiction of Certificate(Date of Opinion)

(ii) The certificate shall be signed by an individual, or in the name of a partnership or a professional corporation with two or more shareholders. The certificate number and jurisdiction are not required if the certificate is signed in the name of a partnership or a professional corporation with two or more shareholders.

(3) If the Annual Statement of Account is served by mail or by reputable courier service, the certification of the Annual Statement of Account by the licensee shall be made by handwritten signature. If the compulsory licensee is a corporation, the signature shall be that of a duly authorized officer of the corporation; if that compulsory licensee is a partnership, the signature shall be that of a partner.

(4) If the Annual Statement of Account is served electronically, the licensee may serve an electronic facsimile of the original certification of the Annual Statement of Account signed by the licensed Certified Public Accountant. The licensee shall retain the original certification of the Annual Statement of Account signed by the licensed Certified Public Accountant, which shall be made available to the copyright owner upon demand.

(5) If the Annual Statement of Account is served electronically, the licensee and the copyright owner shall establish a procedure to verify that the certification of the Annual Statement of Account by the licensee is made upon proper authority.

(g) Service. (1) Each Annual Statement of Account shall be served on the copyright owner or the agent with authority to receive Annual Statements of Account on behalf of the copyright owner to whom or which it is directed by mail or by reputable courier service on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. It shall not be necessary to file a copy of the Annual Statement in the Copyright Office. An Annual Statement of Account shall be served for each fiscal year during which at least one Monthly Statement of Account was required to have been served under § 210.16(g).

(2) In any case where the amount required to be stated in the Annual Statement of Account under paragraph (c)(8) of this section is greater than the amount stated in that Annual Statement under paragraph (c)(9) of this section, the difference between such amounts shall be delivered to the copyright owner together with the service of the Annual Statement. The delivery of such sum does not require the copyright owner to accept such sum, or to forego any right, relief, or remedy which may be available under law.

(3)(i) In any case where an Annual Statement of Account is sent by mail or by reputable courier service and is returned to the sender because the copyright owner or agent is not located at that address or has refused to accept delivery, or in any case where an address for the copyright owner is not known, the Annual Statement of Account, together with any evidence of mailing or attempted delivery by courier service, may be filed in the Licensing Division of the Copyright Office. Any Annual Statement of Account submitted for filing shall be accompanied by a brief statement of the reason why it was not served on the copyright owner. A written acknowledgment of receipt and filing will be provided to the sender.

(ii) The Copyright Office will not accept any royalty fees submitted with Annual Statements of Account under this paragraph (g)(3).

(iii) Neither the filing of an Annual Statement of Account in the Copyright Office, nor the failure to file such Annual Statement, shall have any effect other than that which may be attributed to it by a court of competent jurisdiction.

(iv) No filing fee will be required in the case of Annual Statements of Account submitted to the Copyright Office under this paragraph (g)(3). Upon request and payment of the fee specified in § 201.3(e) of this chapter, a Certificate of Filing will be provided to the sender.

(4) If an Annual Statement of Account is sent by certified mail or registered mail, a mailing receipt shall be sufficient to prove that service was timely. If an Annual Statement of Account is delivered by a reputable courier, documentation from the courier showing the first date of attempted delivery shall also be sufficient to prove that service was timely. In the absence of a receipt from the United States Postal Service showing the date of delivery or documentation showing the first date of attempted delivery by a reputable courier, the compulsory licensee shall bear the burden of proving that the Annual Statement of Account was served in a timely manner.

(5) If an Annual Statement of Account covers reporting for more than 50 works that are embodied in phonorecords made under the compulsory license, the copyright owner or the authorized agent may send the licensee a demand that the Annual Statement of Account be resubmitted in an electronic format and that future Annual Statements of Account be submitted in an electronic format. The statement may be submitted on a data storage medium widely used at the time for electronic storage of data, in the form of a flat file, word processing document or spreadsheet readable with computer software in wide use at such time, with the required information identified and/or delimited so as to be readily discernible. The Statement of Account may be submitted by means of electronic transmission (such as email) if the copyright owner or authorized agent states that such submission will be accepted. As provided in paragraph (f) of this section, the licensee and the copyright owner shall establish a procedure to verify that the certification portion of the statement is made upon the authority of the licensee.

(6) The copyright owner and the licensee or authorized agent may agree upon alternative methods of payment, provided that when the Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Annual Statements of Account shall be sent and any additional payment shall be made on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. Any Annual Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g) of this section regarding service by mail or by reputable courier service of the Annual Statements of Account together with the total additional royalty covered by the Annual Statement.

(7) For purposes of this section, a copyright owner or an agent of a copyright owner with authority to receive an Annual Statement of Account may make public a written policy that it will accept an Annual Statement of Account by means of electronic transmission and include in that written policy procedures for making any additional royalty payments. When the Annual Statement of Account and any additional payment are not sent together by mail or courier service, they shall be sent contemporaneously. Annual Statements of Account shall be sent and payment shall be made on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. Any Annual Statement of Account provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of this paragraph (g) regarding service by mail or by reputable courier service of the Annual Statement of Account together with any additional royalty payment.

§ 210.18Documentation.

All compulsory licensees shall, for a period of at least five years from the date of service of an Annual Statement of Account, keep and retain in their possession all records and documents necessary and appropriate to support fully the information set forth in such Annual Statement and in Monthly Statements served during the fiscal year covered by such Annual Statement.

§ 210.19Timing of statements of account.

Statements of Accounts for an accounting period which closes after the effective date of this regulation shall be due as provided in §§ 210.16(g)(1) and 210.17(g)(1). Statements of Account for any prior reporting period shall be due 180 days after the effective date of this regulation.

This subpart prescribes the rules pertaining to the preparation and service of Statements of Account covering compulsory licenses for the making and distribution of phonorecords, by certain services which offer digital phonorecord deliveries, pursuant to 17 U.S.C. 115 and the regulations in 37 CFR part 385 governing rates and terms for use of musical works under compulsory license for the making and distribution of phonorecords.

§ 210.22Definitions.

As used in this subpart:

(a) A Monthly Statement of Account is a statement accompanying monthly royalty payments identified in 17 U.S.C. 115(c)(5), as amended by Public Law 94-553, and required by that section to be made under the compulsory license to make and distribute phonorecords of nondramatic musical works, including by means of a digital phonorecord delivery.

(b) An Annual Statement of Account is a statement identified in 17 U.S.C. 115(c)(5), as amended by Public Law 94-553, and required by that section to be filed for every compulsory license to make and distribute phonorecords of nondramatic musical works.

(c) A “digital phonorecord delivery” is each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. The reproduction of the phonorecord must be sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. Such a phonorecord may be permanent or it may be made available to the transmission recipient for a limited period of time or for a specified number of performances. A digital phonorecord delivery includes all phonorecords that are made for the purpose of making the digital phonorecord delivery.

(d) A limited download means a digital transmission of a sound recording of a musical work to an end user, other than a stream, that results in a specifically identifiable reproduction of that sound recording that is only accessible for listening if—

(1) An amount of time not to exceed 1 month from the time of the transmission (unless the service, in lieu of retransmitting the same sound recording as another limited download, separately and upon specific request of the end user made through a live network connection, reauthorizes use for another time period not to exceed 1 month), or in the case of a subscription transmission, a period of time following the end of the applicable subscription no longer than a subscription renewal period or 3 months, whichever is shorter; or

(2) A specified number of times not to exceed 12 (unless the service, in lieu of retransmitting the same sound recording as another limited download, separately and upon specific request of the end user made through a live network connection, reauthorizes use of another series of 12 or fewer plays), or in the case of a subscription transmission, 12 times after the end of the applicable subscription.

(3) A limited download is a general digital phonorecord delivery as defined in this section.

(e) An interactive stream means a stream of a sound recording of a musical work, where the performance of the sound recording by means of a stream is not exempt under 17 U.S.C. 114(d)(1) and does not in itself or as a result of a program in which it is included qualify for statutory licensing under 17 U.S.C. 114(d)(2).

(f) A phonorecord is used as a general term in this subpart to refer to all configurations of a phonorecord made and distributed under 17 U.S.C. 115, including a limited download, an incidental digital phonorecord delivery, and an interactive stream.

(g) The term copyright owner, in the case of any work having more than one copyright owner, means any one of the co-owners.

(h) The service of a Statement of Account on a copyright owner under this subpart may be accomplished by means of service on either the copyright owner or an agent of the copyright owner with authority to receive Statements of Account on behalf of the copyright owner. In the case where the work has more than one copyright owner, the service of the Statement of Account on one co-owner or upon an agent of one of the co-owners shall be sufficient with respect to all co-owners.

(i) A compulsory licensee is a person or entity exercising the compulsory license to make and distribute phonorecords of nondramatic musical works as provided under 17 U.S.C. 115, including by means of a digital phonorecord delivery.

(j) A limited download, an incidental digital phonorecord delivery, and an interactive stream shall be treated as a type of phonorecord configuration:

(1) Distributed on the date the phonorecord is digitally transmitted; and

(2) As having been voluntarily distributed and relinquished from possession on the date that the phonorecord is digitally transmitted.

(k) An incomplete transmission is any digital transmission of a sound recording which, as determined by means within the sole control of the distributor, does not result in a specifically identifiable reproduction of the entire sound recording by or for any transmission recipient.

(l) A retransmission is a subsequent digital transmission of the same sound recording initially transmitted to an identified recipient for the purpose of completing the delivery of a complete and usable reproduction of that sound recording to that recipient.

§ 210.23Monthly statements of accounts.

(a) Forms. The Copyright Office does not provide printed forms for the use of persons serving Monthly Statements of Account.

(b) General content. A Monthly Statement of Account shall be clearly and prominently identified as a “Monthly Statement of Account Under Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:

(1) The period (month and year) covered by the Monthly Statement;

(2) The full legal name of the compulsory licensee, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords.

(3) The full address, including a specific number and street name or rural route, of the place of business of the compulsory licensee. A post office box or similar designation will not be sufficient for this purpose, except where it is the only address that can be used in that geographic location;

(4) The title or titles of the nondramatic musical work or works embodied in phonorecords made under the compulsory license and owned by the copyright owner being served with the Monthly Statement and the name of the author or authors of such work or works, if known;

(5) For each nondramatic musical work that is owned by the same copyright owner being served with the Monthly Statement and that is embodied in phonorecords covered by the compulsory license, a detailed statement of all of the information called for in paragraph (c) of this section;

(6) The total royalty payable for the month covered by the Monthly Statement, computed in accordance with the requirements of this section specified in paragraph (d) of this section, together with a Statement of account showing in detail how the royalty was computed; and

(c) Specific content of monthly statements: Identification and accounting of phonorecords. (1) The information called for by paragraph (b)(5) of this section shall, with respect to each each nondramatic musical work, include a separate listing of each of the following items of information:

(i) The number of phonorecords accounted for in this subpart, including the number of limited downloads, incidental digital phonorecord deliveries, and interactive streams made during the month covered by the Monthly Statement;

(ii) The number of promotional interactive streams and promotional promotional limited downloads; and

(iii) The number of phonorecords that were never delivered due to a failed transmission; or digitally retransmitted in order to complete a digital phonorecord delivery.

(2) Each of the items of information called for by paragraph (c)(1) of this section shall also include, and if necessary shall be broken down to identify separately, the following:

(i) The catalog number or numbers and label name or names, used on the phonorecords;

(ii) The names of the principal recording artist or group engaged in rendering the performances fixed on the phonorecords;

(iii) The playing time on the phonorecords of each nondramatic musical work covered by the statement; and

(iv) Each phonorecord configuration involved (for example, a limited download, an incidental digital phonorecord delivery, an interactive stream or a combination of these configurations).

(v) The date of and a reason for each incomplete transmission.

(d) Royalty payment and accounting. (1) The total royalty called for by paragraph (b)(6) of this section shall be payable for every phonorecord “voluntarily distributed” during the month covered by the Monthly Statement.

(2) The amount of the royalty payment for each offering, e.g., a limited download or an interactive stream, shall be calculated separately:

(ii) In accordance with the methodology specified in §§ 385.22 through 385.24, for each limited offering, mixed service bundle, music bundle, paid locker service, and purchased music content locker service.

(3) Each Statement of Account shall include each step of its calculations with sufficient information to allow the copyright owner to assess the accuracy and manner in which the licensee determined the payable royalty pool and per-play allocations (including information sufficient to demonstrate whether and how a minimum royalty or subscriber-based royalty floor pursuant to § 385.13 and § 385.23 does or does not apply).

(4) In computing royalty payment pursuant to paragraph (d)(2) of this section, a licensee may, in cases where the final public performance royalty has not yet been determined, compute the public performance royalty component based on the interim rate, if established; or alternatively, on a reasonable estimation of the expected royalties to be paid made in accordance with U.S. Generally Accepted Accounting Principles (GAAP). Royalty payments based on anticipated payments or interim public performance royalty rates must be reconciled on the Annual Statement of Account or, if the final public performance royalty rate is determined after the filing of the Annual Statement of Account, within six months of obtaining the information concerning the amount of public performance royalties actually paid during the relevant accounting period by filing an Amended Annual Statement of Account for this purpose.

(e) Clear statements. The information required by paragraphs (b) and (c) of this section requires intelligible, legible, and unambiguous statements in the Monthly Statements of Account without incorporation of facts or information contained in other documents or records, except in the case of promotional interactive streaming activities, certain promotional limited downloads and free trial periods. Information concerning promotional activities and free trial periods shall be maintained and made available as prescribed in § 385.14 and § 385.24.

(i) The printed or typewritten name of the person who is the licensee certifying the Monthly Statement of Account;

(ii) If the compulsory licensee is a partnership or a corporation, by the title or official position held in the partnership or corporation by the person certifying the Monthly Statement of Account;

(iii) The date of certification;

(iv) A statement of the capacity of the person making the certification; and

(v) The following statement:

I certify that I have examined this Monthly Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith.

(2) If the Monthly Statement of Account is served by mail or by reputable courier service, certification of the Monthly Statement of Account by the licensee shall be made by handwritten signature. If the compulsory licensee is a corporation, the signature shall be that of a duly authorized officer of the corporation; if the compulsory licensee is a partnership, the signature shall be that of a partner.

(3) If the Monthly Statement of Account is served electronically, the licensee and the copyright owner shall establish a procedure to verify that the certification of the Monthly Statement of Account by the licensee is made upon proper authority.

(g) Service. (1) Each Monthly Statement of Account shall be served on the copyright owner or the agent with authority to receive Monthly Statements of Account on behalf of the copyright owner to whom or which it is directed, together with the total royalty for the month covered by the Monthly Statement, by mail or by reputable courier service on or before the 20th day of the immediately succeeding month. However, in the case where the licensee has served its Notice of Intention upon an agent of the copyright owner pursuant to § 201.18 of this chapter, the licensee is not required to serve Monthly Statements of Account or make any royalty payments until the licensee receives from the agent with authority to receive the Notice of Intention notice of the name and address of the copyright owner or its agent upon whom the licensee shall serve Monthly Statements of Account and the monthly royalty fees. Upon receipt of this information, the licensee shall serve Monthly Statements of Account and all royalty fees covering the intervening period upon the person or entity identified by the agent with authority to receive the Notice of Intention by or before the 20th day of the month following receipt of the notification. It shall not be necessary to file a copy of the Monthly Statement in the Copyright Office.

(2)(i) In any case where a Monthly Statement of Account is sent by mail or reputable courier service and the Monthly Statement of Account is returned to the sender because the copyright owner or agent is no longer located at that address or has refused to accept delivery, or in any case where an address for the copyright owner is not known, the Monthly Statement of Account, together with any evidence of mailing or attempted delivery by courier service, may be filed in the Licensing Division of the Copyright Office. Any Monthly Statement of Account submitted for filing in the Copyright Office shall be accompanied by a brief statement of the reason why it was not served on the copyright owner. A written acknowledgment of receipt and filing will be provided to the sender.

(ii) The Copyright Office will not accept any royalty fees submitted with Monthly Statements of Account under this section.

(iii) Neither the filing of a Monthly Statement of Account in the Copyright Office, nor the failure to file such Monthly Statement, shall have effect other than that which may be attributed to it by a court of competent jurisdiction.

(iv) No filing fee will be required in the case of Monthly Statements of Account submitted to the Copyright Office under this section. Upon request and payment of the fee specified in § 201.3(e) of this chapter, a Certificate of Filing will be provided to the sender.

(3) A separate Monthly Statement of Account shall be served for each month during which there is any activity relevant to the payment of royalties under 17 U.S.C. 115, and under this section. The Annual Statement of Account identified in § 210.24 of this subpart does not replace any Monthly Statement of Account.

(4) If a Monthly Statement of Account is sent by certified mail or registered mail, a mailing receipt shall be sufficient to prove that service was timely. If a Monthly Statement of Account is delivered by a reputable courier, documentation from the courier showing the first date of attempted delivery shall also be sufficient to prove that service was timely. In the absence of a receipt from the United States Postal Service showing the date of delivery or documentation showing the first date of attempted delivery by a reputable courier, the compulsory licensee shall bear the burden of proving that the Monthly Statement of Account was served in a timely manner.

(5) If a Monthly Statement of Account covers reporting for more than 50 works that are embodied in phonorecords made under the compulsory license, the copyright owner or the authorized agent may send the licensee a demand that the Monthly Statement of Account be resubmitted in an electronic format and that future Statements of Account be submitted in an electronic format. The statement may be submitted on a data storage medium widely used at the time for electronic storage of data, in the form of a flat file, word processing document or spreadsheet readable with computer software in wide use at such time, with the required information identified and/or delimited so as to be readily discernible. The Statement of Account may be submitted by means of electronic transmission (such as email) if the demand from the copyright owner or authorized agent states that such submission will be accepted. As provided in paragraph (f) of this section, the licensee and the copyright owner shall establish a procedure to verify that the certification portion of the statement is made upon the authority of the licensee.

(6) The copyright owner and the licensee or authorized agent may agree upon alternative methods of payment, provided that when the Monthly Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Monthly Statements of Account shall be sent and payment shall be made on or before the 20th day of each month and shall include all royalties for the month next proceeding. Any Monthly Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g)(1) of this section regarding service by mail or by reputable courier service of the Monthly Statements of Account together with the total royalty for the month covered by the Monthly Statement.

(7) For purposes of this section, a copyright owner or an agent of a copyright owner with authority to receive a Monthly Statement of Account may make public a written policy that it will accept a Monthly Statement of Account by means of electronic transmission and include in that written policy procedures for making royalty payments. When the Monthly Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Monthly Statements of Account shall be sent and payment shall be made on or before the 20th day of each month and shall include all royalties for the month next proceeding. Any Monthly Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g)(1) of this section regarding service by mail or by reputable courier service of the Monthly Statements of Account together with the total royalty for the month covered by the Monthly Statement.

§ 210.24 Annual statements of accounts.

(a) Forms. The Copyright Office does not provide printed forms for the use of persons serving Annual Statements of Account.

(b) Annual period. Any Annual Statement of Account shall cover the full fiscal year of the compulsory licensee.

(c) General content. An Annual Statement of Account shall be clearly and prominently identified as an “Annual Statement of Account under Compulsory License for Making and Distributing Phonorecords,” and shall include a clear statement of the following information:

(1) The fiscal year covered by the Annual Statement;

(2) The full legal name of the compulsory licensee, together with all fictitious or assumed names used by such person or entity for the purpose of conducting the business of making and distributing phonorecords;

(3) If the compulsory licensee is a business organization, the name and title of the chief executive officer, managing partner, sole proprietor or other person similarly responsible for the management of such entity.

(4) The full address, including a specific number and street name or rural route, or the place of business of the compulsory licensee. A post office box or similar designation will not be sufficient for this purpose except where it is the only address that can be used in that geographic location;

(5) The title or titles of the nondramatic musical work or works embodied in phonorecords made under the compulsory license and owned by the copyright owner being served with the Annual Statement and the name of the author or authors of such work or works, if known;

(6) The playing time of each nondramatic musical work on such phonorecords;

(7) For each nondramatic musical work that is owned by the same copyright owner being served with the Annual Statement and that is embodied in phonorecords covered by the compulsory license, a detailed statement of all of the information called for in paragraph (d) of this section;

(8) The total royalty payable for the fiscal year covered by the Annual Statement computed in accordance with the requirements of this section, together with a statement of account showing in detail how the royalty was computed. For these purposes, the applicable royalty as specified in §§ 385.12 through 385.14 and §§ 385.22 through 385.24, shall be payable for every phonorecord “voluntarily distributed” during the fiscal year covered by the Annual Statement;

(9) The total sum paid under Monthly Statements of Account in accordance with the requirements of this section by the compulsory licensee to the copyright owner being served with the Annual Statement during the fiscal year covered by the Annual Statement; and

(10) Any adjustments for public performance royalties deducted from the monthly royalty payments made during the fiscal year covered by the Annual Statement.

(d) Specific content of annual statements: Identification and accounting of phonorecords. (1) The information called for by paragraph (c)(7) of this section shall, with respect to each nondramatic musical work, include a separate listing for each phonorecord configuration (for example, limited download, an incidental digital phonorecord delivery, and an interactive stream) made the number of phonorecords made and voluntarily distributed” by the compulsory licensee through the end of the fiscal year covered by the Annual Statement, together with:

(i) The catalog number or numbers, and label name or names, used on such phonorecords; and

(ii) The names of the principal recording artists or groups engaged in rendering the performances fixed on such phonorecords.

(2) If the information given under paragraphs (d)(1) and (c)(8) of this section does not reconcile, the Annual Statement shall also include a clear and detailed explanation of the difference. For these purposes, the information given under these paragraphs shall be considered not to reconcile if the number of phonorecords and royalties reported under these paragraphs are different from the sum of these amounts reported on the Monthly Statements of Account covered by the Statement of Account.

(e) Clear statement. The information required by paragraph (c) of this section involves intelligible, legible, and unambiguous statements in the Annual Statement of Account itself and without incorporation by reference of facts or information contained in other documents or records, except in the case of promotional interactive streaming activities, certain promotional limited downloads and free trial periods. Information concerning promotional activities and free trial periods shall be maintained and made available as prescribed in § 385.14 and § 385.24.

(i) The printed or typewritten name of the person who is the licensee certifying the Annual Statement of Account;

(ii) The date of certification;

(iii) If the compulsory licensee is a partnership or a corporation, the title or official position held in the partnership or corporation who is making the certification;

(iv) A statement of the capacity of the person making the certification; and

(v) The following statement:

I certify that I have examined this Annual Statement of Account and that all statements of fact contained herein are true, complete, and correct to the best of my knowledge, information, and belief, and are made in good faith.

(2)(i) Each Annual Statement of Account shall also be certified by a licensed Certified Public Accountant. Such certification shall consist of the following statement.

We have examined the attached “Annual Statement of Account Under Compulsory License For Making and Distributing Phonorecords” for the fiscal year ended (date) of (name of the compulsory licensee) applicable to phonorecords embodying (title or titles of nondramatic musical works embodied in phonorecords made under the compulsory license) made under the provisions of 17 U.S.C. 115, as amended by Public Law 94-553, and applicable regulations of the United States Copyright Office. Our examination was made in accordance with generally accepted auditing standards and accordingly, included tests of the accounting records and such other auditing procedures as we considered necessary in the circumstances.

In our opinion the Annual Statement of Account referred to above presents fairly the number of phonorecords embodying each of the above-identified nondramatic musical works made under compulsory license and voluntarily distributed by (name of the compulsory licensee) during the fiscal year ending (date), and the amount of royalties applicable thereto under such compulsory license, on a consistent basis and in accordance with the above cited law and applicable regulations published thereunder.

(City and State of Execution)(Signature of Certified Public Accountant or CPA Firm)Certificate NumberJurisdiction of Certificate(Date of Opinion)

(ii) The certificate shall be signed by an individual, or in the name of a partnership or a professional corporation with two or more shareholders. The certificate number and jurisdiction are not required if the certificate is signed in the name of a partnership or a professional corporation with two or more shareholders.

(3) If the Annual Statement of Account is served by mail or by reputable courier service, the certification of the Annual Statement of Account by the licensee shall be made by handwritten signature. If the compulsory licensee is a corporation, the signature shall be that of a duly authorized officer of the corporation; if that compulsory licensee is a partnership, the signature shall be that of a partner.

(4) If the Annual Statement of Account is served electronically, the licensee may serve an electronic facsimile of the original certification of the Annual Statement of Account signed by the licensed Certified Public Accountant. The licensee shall retain the original certification of the Annual Statement of Account signed by the licensed Certified Public Accountant, which shall be made available to the copyright owner upon demand.

(5) If the Annual Statement of Account is served electronically, the licensee and the copyright owner shall establish a procedure to verify that the certification of the Annual Statement of Account by the licensee is made upon proper authority.

(g) Service. (1) Each Annual Statement of Account shall be served on the copyright owner or the agent with authority to receive Annual Statements of Account on behalf of the copyright owner to whom or which it is directed by mail or by reputable courier service on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. It shall not be necessary to file a copy of the Annual Statement in the Copyright Office. An Annual Statement of Account shall be served for each fiscal year during which at least one Monthly Statement of Account was required to have been served under § 210.23(g).

(2) In any case where the amount required to be stated in the Annual Statement of Account under paragraph (c)(8) of this section is greater than the amount stated in that Annual Statement under paragraph (c)(9) of this section, the difference between such amounts shall be delivered to the copyright owner together with the service of the Annual Statement. The delivery of such sum does not require the copyright owner to accept such sum, or to forego any right, relief, or remedy which may be available under law.

(3)(i) In any case where an Annual Statement of Account is sent by mail or by reputable courier service and is returned to the sender because the copyright owner or agent is not located at that address or has refused to accept delivery, or in any case where an address for the copyright owner is not known, the Annual Statement of Account, together with any evidence of mailing or attempted delivery by courier service, may be filed in the Licensing Division of the Copyright Office. Any Annual Statement of Account submitted for filing shall be accompanied by a brief statement of the reason why it was not served on the copyright owner. A written acknowledgment of receipt and filing will be provided to the sender.

(ii) The Copyright Office will not accept any royalty fees submitted with Annual Statements of Account under this paragraph (g)(3).

(iii) Neither the filing of an Annual Statement of Account in the Copyright Office, nor the failure to file such Annual Statement, shall have any effect other than that which may be attributed to it by a court of competent jurisdiction.

(iv) No filing fee will be required in the case of Annual Statements of Account submitted to the Copyright Office under this paragraph (g)(3). Upon request and payment of the fee specified in § 201.3(e) of this chapter, a Certificate of Filing will be provided to the sender.

(4) If an Annual Statement of Account is sent by certified mail or registered mail, a mailing receipt shall be sufficient to prove that service was timely. If an Annual Statement of Account is delivered by a reputable courier, documentation from the courier showing the first date of attempted delivery shall also be sufficient to prove that service was timely. In the absence of a receipt from the United States Postal Service showing the date of delivery or documentation showing the first date of attempted delivery by a reputable courier, the compulsory licensee shall bear the burden of proving that the Annual Statement of Account was served in a timely manner.

(5) If an Annual Statement of Account covers reporting for more than 50 works that are embodied in phonorecords made under the compulsory license, the copyright owner or the authorized agent may send the licensee a demand that the Annual Statement of Account be resubmitted in an electronic format and that future Annual Statements of Account be submitted in an electronic format. The statement may be submitted on a data storage medium widely used at the time for electronic storage of data, in the form of a flat file, word processing document or spreadsheet readable with computer software in wide use at such time, with the required information identified and/or delimited so as to be readily discernible. The Statement of Account may be submitted by means of electronic transmission (such as email) if the copyright owner or authorized agent states that such submission will be accepted. As provided in paragraph (f) of this section, the licensee and the copyright owner shall establish a procedure to verify that the certification portion of the statement is made upon the authority of the licensee.

(6) The copyright owner and the licensee or authorized agent may agree upon alternative methods of payment, provided that when the Statement of Account and payment are not sent together by mail or courier service, they shall be sent contemporaneously. Annual Statements of Account shall be sent and any addition payment shall be made on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. Any Annual Statement of Account or payment provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of paragraph (g) of this section regarding service by mail or by reputable courier service of the Annual Statements of Account together with the total additional royalty covered by the Annual Statement.

(7) For purposes of this section, a copyright owner or an agent of a copyright owner with authority to receive an Annual Statement of Account may make public a written policy that it will accept an Annual Statement of Account by means of electronic transmission and include in that written policy procedures for making any additional royalty payments. When the Annual Statement of Account and any additional payment are not sent together by mail or courier service, they shall be sent contemporaneously. Annual Statements of Account shall be sent and payment shall be made on or before the 20th day of the sixth month following the end of the fiscal year covered by the Annual Statement. Any Annual Statement of Account provided in accordance with such policy shall not be rendered invalid for failing to comply with the specific requirements of this paragraph (g) regarding service by mail or by reputable courier service of the Annual Statement of Account together with any additional royalty payment.

§ 210.25 Amended annual statements of account.

In any case where an Annual Statement of Account has been served prior to the final determination of public performance royalties for the reported musical works, all compulsory licensees shall serve Amended Annual Statement of Accounts within six months from the date final rates for public performance royalties for the reported musical works have been established. The Amended Annual Statements of Account shall recalculate the royalty fees reported on the relevant Annual Statements of Account to adjust for any change to the public performance rate used to calculate the royalties reported pursuant to § 210.24. Service shall be made in accordance with § 210.24(g) of this subpart.

§ 210.26 Documentation.

All compulsory licensees shall, for a period of at least five years from the date of service of an Annual Statement of Account or for a period of at least three years from the date the relevant public performance royalty fees have been set, whichever is longer, keep and retain in their possession all records and documents necessary and appropriate to support fully the information set forth in such Annual Statement and in Monthly Statements served during the fiscal year covered by such Annual Statement.

§ 210.27 Timing of statements of account.

Statements of Accounts for any accounting period which closes after the effective date of this regulation shall be due as provided in §§ 210.23(g)(1) and 210.24(g)(1). Statements of Account for any prior reporting period shall be due 180 days after the effective date of this regulation.

EPA is proposing to approve changes to the Florida State Implementation Plan (SIP), submitted by the Florida Department of Environmental Protection (FDEP) to EPA on March 15, 2012. The SIP revision modifies Florida's New Source Review (NSR) Prevention of Significant Deterioration (PSD) permitting program. The SIP revision adopts, into the Florida SIP, federal NSR permitting provisions to address the implementation of the fine particulate matter (PM2.5) national ambient air quality standards (NAAQS) as amended in EPA's 2008 NSR PM2.5 Implementation Rule (hereafter referred to as the “NSR PM2.5 Rule”) and the 2010 PM2.5 PSD Increment, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC) Rule (hereafter referred to as the “PM2.5 PSD Increment-SILs-SMC Rule”). EPA is proposing to approve portions of Florida's SIP revision because the Agency has preliminarily determined that the changes are consistent with the Clean Air Act (CAA or Act) and EPA regulations regarding NSR permitting.

DATES:

Comments must be received on or before August 27, 2012.

ADDRESSES:

Submit your comments, identified by Docket ID No EPA-R04-OAR-2012-0555, by one of the following methods:

Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2012-0555 EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

I. What action is EPA proposing?II. What is the background for EPA's proposed action?III. What are the NSR implementation requirements for the PM2.5 NAAQS?IV. What is EPA's analysis of Florida's SIP revision?V. Proposed RuleVI. Statutory and Executive Order ReviewsI. What action is EPA proposing?

On March 15, 2012, FDEP submitted a SIP revision to EPA for approval into the Florida SIP to adopt federal requirements for NSR permitting. Florida's SIP revision makes changes to the State's Air Quality Regulations at Chapter 62-210, Florida Administrative Code (F.A.C.), Stationary Sources—General Requirements, Section 200—Definitions (rule 62-210.200), and Chapter 62-212, F.A.C., Stationary Sources—Preconstruction Review, Section 300—General Preconstruction Review Requirements (rule 62-212.300) and Section 400—Prevention of Significant Deterioration (rule 62-212.400). These rule changes were provided to comply with federal NSR permitting provisions related to the implementation of the PSD program for the PM2.5 NAAQS as promulgated in the NSR PM2.5 Rule entitled “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5),” Final Rule, 73 FR 28321 (May 16, 2008) and the PM2.5 PSD Increment-SILs-SMC Rule entitled “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels SILs and Significant Monitoring Concentration (SMC),” Final Rule,” 75 FR 64864, (October 20, 2010). Pursuant to section 110 of the CAA, EPA is proposing to approve into the Florida SIP these changes submitted by the State, with the exception of the SILs provisions pursuant to EPA's PM2.5 PSD Increment-SILs-SMC Rule.1See 75 FR 64864. More details regarding SILs are summarized below in Sections III and IV.

1 EPA's authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. Sierra Club v. EPA, Case No 10-1413 United States Court of Appeals for the District of Columbia (D.C. Circuit Court).

II. What is the background for EPA's proposed action?

Today's proposed action to revise Florida's SIP relates to EPA's NSR PM2.5 Rule 2 and the PM2.5 PSD Increment-SILs-SMC Rule. In the NSR PM2.5 Rule, EPA finalized regulations to implement the NSR program for the PM2.5 NAAQS. As a result of EPA's final NSR PM2.5 Rule, states were required to submit SIP revisions to EPA no later than May 16, 2011, to address these requirements for both the PSD and Nonattainment NSR (NNSR) programs. EPA's PM2.5 PSD Increment-SILs-SMC Rule established PSD increments, SILs and SMC which address additional components for making PSD permitting determinations for the PM2.5 NAAQS. These requirements address air quality modeling and monitoring provisions for fine particle pollution in areas protected by the PSD program (that is, attainment or unclassifiable/attainment areas for the NAAQS). The PM2.5 PSD Increment-SILs-SMC Rule requires states to submit SIP revisions to adopt the required PSD increments by July 20, 2012. Promulgation of these two rules provided the framework states need to address the NSR permitting requirements for the PM2.5 NAAQS. Florida's March 15, 2012, SIP revision adopts into the Florida SIP the PSD requirements promulgated in these two rules to be consistent with federal regulations for the PM2.5 NAAQS. More detail on the NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's May 16, 2008, and October 20, 2010, final rules, respectively, and are summarized below. See 73 FR 28321 and 75 FR 64864.

2 On November 1, 2005, EPA proposed a rule to implement the 1997 PM2.5 NAAQS, including proposed revisions to the NSR program. See 70 FR 65984.

A. Fine Particulate Matter and the NAAQS

Fine particles in the atmosphere are made up of a complex mixture of components. Common constituents include sulfate; nitrate; ammonium; elemental carbon; a great variety of organic compounds; and inorganic material (including metals, dust, sea salt, and other trace elements) generally referred to as “crustal” material, although it may contain material from other sources. Airborne particulate matter (PM) with a nominal aerodynamic diameter of 2.5 micrometers or less (a micrometer is one-millionth of a meter, and 2.5 micrometers is less than one-seventh the average width of a human hair) are considered to be “fine particles” and are also known as PM2.5. “Primary” particles are emitted directly into the air as a solid or liquid particle (e.g., elemental carbon from diesel engines or fire activities, or condensable organic particles from gasoline engines). “Secondary” particles (e.g., sulfate and nitrate) form in the atmosphere as a result of various chemical reactions.

The health effects associated with exposure to PM2.5 include potential aggravation of respiratory and cardiovascular disease (i.e., lung disease, decreased lung function asthma attacks and certain cardiovascular issues). Epidemiological studies have indicated a correlation between elevated PM2.5 levels and premature mortality. Groups considered especially sensitive to PM2.5 exposure include older adults, children, and individuals with heart and lung diseases. For more details regarding health effects and PM2.5 see EPA's Web site at http://www.epa.gov/oar/particlepollution/ (See heading “Health and Welfare”).

On July 18, 1997, EPA revised the NAAQS for PM to add new standards for fine particles, using PM2.5 as the indicator. Previously, EPA used PM10 (inhalable particles smaller than or equal to 10 micrometers in diameter) as the indicator for the PM NAAQS. EPA established health-based (primary) annual and 24-hour standards for PM2.5, setting an annual standard at a level of 15 micrograms per cubic meter (μg/m3) and a 24-hour standard at a level of 65 μg/m3. See 62 FR 38652. At the time the 1997 primary standards were established, EPA also established welfare-based (secondary) standards identical to the primary standards. The secondary standards are designed to protect against major environmental effects of PM2.5, such as visibility impairment, soiling, and materials damage. On October 17, 2006, EPA revised the primary and secondary NAAQS for PM2.5. In that rulemaking, EPA reduced the 24-hour NAAQS for PM2.5 to 35 μg/m3 and retained the existing annual PM2.5 NAAQS of 15 μg/m3. See 71 FR 61236.

B. What is the NSR program?

The CAA NSR program is a preconstruction review and permitting program applicable to certain new and modified stationary sources of air pollutants regulated under the CAA. The program includes a combination of air quality planning and air pollution control technology requirements. The CAA NSR program is composed of three separate programs: PSD, NNSR, and Minor NSR. PSD is established in part C of title I of the CAA and applies in areas that meet the NAAQS (“attainment areas”) as well as areas where there is insufficient information to determine if the area meets the NAAQS (“unclassifiable areas”). The NNSR program is established in part D of title I of the CAA and applies in areas that are not in attainment of the NAAQS (“nonattainment areas”). The Minor NSR program addresses construction or modification activities that do not qualify as “major” and applies regardless of the designation of the area in which a source is located. Together, these programs are referred to as the NSR program. EPA regulations governing the implementation of these programs are contained in 40 CFR 51.160-.166; 52.21, .24; and, part 51, appendix S. Section 109 of the CAA requires EPA to promulgate a primary NAAQS to protect public health and a secondary NAAQS to protect public welfare. Once EPA sets those standards, states must develop, adopt, and submit a SIP to EPA for approval that includes emission limitations and other control measures to attain and maintain the NAAQS. See CAA section 110. Each SIP is also required to include a preconstruction review program for the construction and modification of any stationary source of air pollution to assure the maintenance of the NAAQS. The applicability of the PSD program to a major stationary source must be determined in advance of construction and is a pollutant-specific determination. Once a major source is determined to be subject to the PSD program (and thus is a “PSD source”), among other requirements, it must undertake a series of analyses to demonstrate that it will use the best available control technology and will not cause or contribute to a violation of any NAAQS or increment. Florida's March 15, 2012, SIP revision consists of rule amendments to adopt into Florida's PSD program provisions related to the review and control of PM2.5 emissions from major stationary sources and modifications.

III. What are the NSR implementation requirements for the PM2.5 NAAQS?A. NSR PM2.5 Rule

On May 16, 2008, EPA finalized the NSR PM2.5 Rule to implement the PM2.5 NAAQS, including changes to the NSR program. See 73 FR 28321. The NSR PM2.5 Rule revised the federal NSR program requirements to establish the framework for implementing preconstruction permit review for the PM2.5 NAAQS in both attainment and nonattainment areas. Specifically, the NSR PM2.5 Rule established NSR requirements to implement the PM2.5 NAAQS that: (1) Require NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) establish significant emission rates for direct PM2.5 and precursor pollutants (including sulfur dioxide (SO2) and nitrogen oxides (NOX)); (3) establish PM2.5 emission offsets; (4) provide exceptions to the PM10 grandfathering policy; and (5) require states to account for gases that condense to form particles (“condensables”) in PM2.5 and PM10 emission limits in PSD or NNSR permits. Additionally, the NSR PM2.5 Rule authorized states to adopt provisions in their NNSR rules that would allow interpollutant offset trading. Florida's March 15, 2012, SIP revision addresses the PSD permitting requirements promulgated in the NSR PM2.5 Rule.3 A few key issues described in greater detail below include the PM10 surrogate and grandfathering policy and the condensable provision.

3 Florida's March 15, 2012, SIP revision only addresses the State's PSD permitting program and does not adopt the NNSR permitting requirements for PM2.5 emission offsets, condensable provision or the discretionary interpollutant trading policy and ratios promulgated in the 2008 NSR PM2.5 Rule. Moreover Florida is attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

1. PM10 Surrogate and Grandfathering Policy

After EPA promulgated the NAAQS for PM2.5 in 1997 (62 FR 38652, July 18, 1997), the Agency issued a guidance document entitled “Interim Implementation of New Source Review Requirements for PM2.5.” John S. Seitz, EPA, October 23, 1997 (the “Seitz Memo”). The Seitz Memo was designed to help states implement NSR requirements pertaining to the new PM2.5 NAAQS in light of technical difficulties posed by PM2.5 at that time. Specifically, the Seitz Memo stated: “PM-10 may properly be used as a surrogate for PM-2.5 in meeting NSR requirements until these difficulties are resolved.” EPA also issued a guidance document entitled “Implementation of New Source Review Requirements in PM-2.5 Nonattainment Areas” (the “2005 PM2.5 NNSR Guidance”) on April 5, 2005, the date that EPA's PM2.5 nonattainment area designations became effective for the 1997 NAAQS. The 2005 PM2.5 NNSR Guidance provided direction regarding implementation of the nonattainment major NSR provisions in PM2.5 nonattainment areas in the interim period between the effective date of the PM2.5 nonattainment area designations (April 5, 2005) and EPA's promulgation of final PM2.5 NNSR regulations. Besides re-affirming the continuation of the PM10 Surrogate Policy for PM2.5 attainment areas set forth in the Seitz memo, the 2005 PM2.5 NNSR Guidance recommended that until EPA promulgated the PM2.5 major NSR regulations, “States should use a PM10 nonattainment major NSR program as a surrogate to address the requirements of nonattainment major NSR for the PM2.5 NAAQS.”

In the NSR PM2.5 Rule, EPA required that major stationary sources seeking permits must begin directly satisfying the PM2.5 requirements, as of the effective date of the rule, rather than relying on PM10 as a surrogate, with two exceptions. The first exception is the “grandfathering” provision in the federal PSD program at 40 CFR 52.21(i)(1)(xi). This grandfathering provision applied to sources that had applied for, but had not yet received, a final and effective PSD permit before the July 15, 2008, effective date of the May 16, 2008, final rule. The second exception was that states with SIP-approved PSD programs could continue to implement the Seitz Memo's PM10 Surrogate Policy for up to three years (until May 2011) or until EPA approved the individual revised state PSD programs for PM2.5, whichever came first. See 73 FR 28321.4

4 Additional information on this issue can also be found in an August 12, 2009, final order on a title V petition describing the use of PM10 as a surrogate for PM2.5. In the Matter of Louisville Gas & Electric Company, Petition No. IV-2008-3, Order on Petition (August 12, 2009).

On February 11, 2010, EPA proposed to repeal the grandfathering provision for PM2.5 contained in the federal PSD program at 40 CFR 52.21(i)(1)(xi) and to end early the PM10 Surrogate Policy applicable in states that have a SIP-approved PSD program. See 75 FR 6827. In support of this proposal, EPA explained that the PM2.5 implementation issues that led to the adoption of the PM10 Surrogate Policy in 1997 have been largely resolved to a degree sufficient for sources and permitting authorities to conduct meaningful permit-related PM2.5 analyses.

On May 18, 2011 (76 FR 28646), EPA took final action to repeal the PM2.5 grandfathering provision at 40 CFR 52.21(i)(1)(xi). This final action ended the use of the 1997 PM10 Surrogate Policy for PSD permits under the federal PSD program at 40 CFR 52.21. In effect, any PSD permit applicant previously covered by the grandfathering provision (for sources that completed and submitted a permit application before July 15, 2008) 5 that did not have a final and effective PSD permit before the effective date of the repeal would no longer be able to rely on the 1997 PM10 Surrogate Policy to satisfy the PSD requirements for PM2.5 unless the application included a valid surrogacy demonstration. See 76 FR 28646. Florida's March 15, 2012, SIP revision did not adopt the grandfathering provision at 40 CFR 52.21(i)(1)(xi), in accordance with the repeal of the PM2.5 grandfathering provision.

5 Sources that applied for a PSD permit under the federal PSD program on or after July 15, 2008, are already excluded from using the 1997 PM10 Surrogate Policy as a means of satisfying the PSD requirements for PM2.5. See 76 FR 28321.

2. “Condensable” Provision

In the NSR PM2.5 Rule, EPA revised the definition of “regulated NSR pollutant” for PSD to add a paragraph providing that “particulate matter (PM) emissions, PM2.5 emissions and PM10 emissions” shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures and that on or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM, PM2.5 and PM10 in permits. See 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(vi) and “Emissions Offset Interpretative Ruling” (40 CFR part 51, appendix S). A similar paragraph added to the NNSR rule does not include “particulate matter (PM) emissions.” See 40 CFR 51.165(a)(1)(xxxvii)(D).

On March 16, 2012, EPA proposed a rulemaking to amend the definition of “regulated NSR pollutant” promulgated in the NSR PM2.5 Rule regarding the PM condensable provision at 40 CFR 51.166(b)(49)(vi), 52.21(b)(50)(i) and EPA's Emissions Offset Interpretative Ruling. See 77 FR 15656. The rulemaking proposes to remove the inadvertent requirement in the NSR PM2.5 Rule that the measurement of condensable “particulate matter emissions” be included as part of the measurement and regulation of “particulate matter emissions.” The term “particulate matter emissions” includes particles that are larger than PM2.5 and PM10 and is an indicator measured under various New Source Performance Standards (NSPS) (40 CFR part 60).6 Florida's March 15, 2012, SIP revision did not adopt the term “particulate matter emissions” regarding the requirement to consider condensables as promulgated in the NSR PM2.5 Rule.

6 In addition to the NSPS for PM, states have regulated “particulate matter emissions” for many years in their SIPs for PM, and the same indicator has been used as a surrogate for determining compliance with certain standards contained in 40 CFR part 63 regarding National Emission Standards for Hazardous Air Pollutants.

B. PM2.5 PSD Increment-SILs-SMC-Rule

As mentioned above, EPA finalized the PM2.5 PSD Increment-SILs-SMC Rule to provide additional regulatory requirements under the PSD program regarding the implementation of the PM2.5 NAAQS for NSR.7 Specifically, the rule establishes the following to implement the PM2.5 NAAQS for the PSD program: (1) PM2.5 increments pursuant to section 166(a) of the CAA to prevent significant deterioration of air quality in areas meeting the NAAQS; (2) SILs used as a screening tool (by a major source subject to PSD) to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment; and (3) a SMC, (also a screening tool) used by a major source subject to PSD to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM2.5. As part of the response to comments on October 20, 2010 final rulemaking, EPA explained that, the agency agrees that the SILs and SMC used as de minimis thresholds for the various pollutants are useful tools that enable permitting authorities and PSD applicants to screen out “insignificant” activities; however, the fact remains that these values are not required by the Act as part of an approvable SIP program. EPA believes that most states are likely to adopt the SILs and SMC because of the useful purpose they serve regardless of our position that the values are not mandatory. Alternatively, states may develop more stringent values if they desire to do so. In any case, states are not under any SIP-related deadline for revising their PSD programs to add these screening tools. See 75 FR 64864, 64900.

Florida's March 15, 2012, SIP revision adopts the PM2.5 PSD Increments (which are statutorily required) as well as the SILs and SMC promulgated in the PM2.5 PSD Increment-SILs-SMC Rule to be consistent with the federal NSR regulations and to appropriately implement the State's NSR program for the PM2.5 NAAQS. More detail on the PM2.5 PSD Increment-SILs-SMC Rule can be found in EPA's October 20, 2010, final rule and is summarized below. See 75 FR 64864. EPA is not proposing to approve the SILs provisions (promulgated in the PM2.5 PSD Increment-SILs-SMC Rule) into the Florida SIP in this rulemaking. EPA's authority to implement the SILs and SMC for PSD purposes has been challenged by the Sierra Club. See Sierra Club v. EPA, Case No. 10-1413 (D.C. Circuit Court).8 More details regarding Florida's changes to its NSR regulations are also summarized below in Section IV.

8 On April 6, 2012, EPA filed a brief with the D.C. Circuit court defending the Agency's authority to implement SILs and SMC for PSD purposes.

1. What are PSD increments?

As established in part C of title I of the CAA, EPA's PSD program protects public health from adverse effects of air pollution by ensuring that construction of new or modified sources in attainment or unclassifiable/attainment areas does not lead to significant deterioration of air quality while simultaneously ensuring that economic growth will occur in a manner consistent with preservation of clean air resources. Under section 165(a)(3) of the CAA, a PSD permit applicant must demonstrate that emissions from the proposed construction and operation of a facility “will not cause, or contribute to, air pollution in excess of any maximum allowable increase or allowable concentration for any pollutant.” In other words, when a source applies for a permit to emit a regulated pollutant in an area that meets the NAAQS, the state and EPA must determine if emissions of the regulated pollutant from the source will cause significant deterioration in air quality. Significant deterioration occurs when the amount of the new pollution exceeds the applicable PSD increment, which is the “maximum allowable increase” of an air pollutant allowed to occur above the applicable baseline concentration 9 for that pollutant. PSD increments prevent air quality in clean areas from deteriorating to the level set by the NAAQS. Therefore an increment is the mechanism used to estimate “significant deterioration” of air quality for a pollutant in an area.

9 Section 169(4) of the CAA provides that the baseline concentration of a pollutant for a particular baseline area is generally the same air quality at the time of the first application for a PSD permit in the area.

For PSD baseline purposes, a baseline area for a particular pollutant emitted from a source includes the attainment or unclassifiable/attainment area in which the source is located as well as any other attainment or unclassifiable/attainment area in which the source's emissions of that pollutant are projected (by air quality modeling) to result in an ambient pollutant increase of at least 1 μg/m3 (annual average). See 40 CFR 52.21(b)(15)(i). Under EPA's existing regulations, the establishment of a baseline area for any PSD increment results from the submission of the first complete PSD permit application and is based on the location of the proposed source and its emissions impact on the area. Once the baseline area is established, subsequent PSD sources locating in that area need to consider that a portion of the available increment may have already been consumed by previous emissions increases. In general, the submittal date of the first complete PSD permit application in a particular area is the operative “baseline date.” 10 On or before the date of the first complete PSD application, emissions generally are considered to be part of the baseline concentration, except for certain emissions from major stationary sources. Most emissions increases that occur after the baseline date will be counted toward the amount of increment consumed. Similarly, emissions decreases after the baseline date restore or expand the amount of increment that is available. See 75 FR 64864. As described in the PM2.5 PSD Increment-SILs-SMC Rule, pursuant to the authority under section 166(a) of the CAA, EPA promulgated numerical increments for PM2.5 as a new pollutant 11 for which the NAAQS were established after August 7, 1977,12 and derived 24-hour and annual PM2.5 increments for the three area classifications (Class I, II and III) using the “contingent safe harbor” approach. See 75 FR 64864 at 64869 and table at 40 CFR 51.166(c)(1).

10 Baseline dates are pollutant specific. That is, a complete PSD application establishes the baseline date only for those regulated NSR pollutants that are projected to be emitted in significant amounts (as defined in the regulations) by the applicant's new source or modification. Thus, an area may have different baseline dates for different pollutants.

11 EPA generally characterized the PM2.5 NAAQS as a NAAQS for a new indicator of PM. EPA did not replace the PM10 NAAQs with the NAAQS for PM2.5 when the PM2.5 NAAQS were promulgated in 1997. EPA rather retained the annual and 24-hour NAAQS for PM2.5 as if PM2.5 was a new pollutant even though EPA had already developed air quality criteria for PM generally. See 75 FR 64864 (October 20, 2012).

12 EPA interprets 166(a) to authorize EPA to promulgate pollutant-specific PSD regulations meeting the requirements of section 166(c) and 166(d) for any pollutant for which EPA promulgates a NAAQS after 1977.

In addition to PSD increments for the PM2.5 NAAQS, the PM2.5 PSD Increment-SILs-SMC Rule amended the definition at 40 CFR 51.166 and 52.21 for “major source baseline date” and “minor source baseline date” (including trigger dates) to establish the PM2.5 NAAQS specific dates associated with the implementation of PM2.5 PSD increments. See 75 FR 64864. In accordance with section 166(b) of the CAA, EPA required the states to submit revised implementation plans to EPA for approval (to adopt the PM2.5 PSD increments) within 21 months from promulgation of the final rule (by July 20, 2012). Each state was responsible for determining how increment consumption and the setting of the minor source baseline date for PM2.5 would occur under its own PSD program. Regardless of when a State begins to require PM2.5 increment analysis and how it chooses to set the PM2.5 minor source baseline date, the emissions from sources subject to PSD for PM2.5 for which construction commenced after October 20, 2010, (major source baseline date) consume the PM2.5 increment and should be included in the increment analyses occurring after the minor source baseline date is established for an area under the state's revised PSD program. As discussed in detail in Section IV, Florida's March 15, 2012, SIP revision adopts the PM2.5 increment permitting requirements promulgated in the PM2.5 PSD Increment-SILs-SMC Rule.

2. What are significant monitoring concentrations?

Under the CAA and EPA regulations, an applicant for a PSD permit is required to gather preconstruction monitoring data in certain circumstances. Section 165(a)(7) calls for “such monitoring as may be necessary to determine the effect which emissions from any such facility may have, or is having, on air quality in any areas which may be affected by emissions from such source.” In addition, section 165(e) requires an analysis of the air quality in areas affected by a proposed major facility or major modification and calls for gathering one year of monitoring data unless the reviewing authority determines that a complete and adequate analysis may be accomplished in a shorter period. These requirements are codified in EPA's PSD regulations at 40 CFR 51.166(m) and 40 CFR 52.21(m). In accordance with EPA's Guideline for Air Quality Modeling (40 CFR part 51, appendix W), the preconstruction monitoring data is primarily used to determine background concentrations in modeling conducted to demonstrate that the proposed source or modification will not cause or contribute to a violation of the NAAQS. See 40 CFR part 51, appendix W, section 9.2. SMCs are numerical values that represent thresholds of insignificant (i.e., de minimis13), monitored (ambient) impacts on pollutant concentrations. In EPA's PM2.5 PSD Increment-SILs-SMC Rule, EPA established a SMC of 4 µg/m3 for PM2.5 to be used as a screening tool by a major source subject to PSD to determine the subsequent level of data gathering required for a PSD permit application for emissions of PM2.5. See 75 FR 64864.

13 The de minimis principle is grounded in decision described by the court case Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1980). In this case reviewing EPA's 1978 PSD regulations, the court recognized that “there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value.” 636 F.2d at 360.

Using the SMC as a screening tool, sources may be able to demonstrate that the modeled air quality impact of emissions from the new source or modification, or the existing air quality level in the area where the source would construct, is less than the SMC (i.e., de minimis), and as such, may be allowed to forego the preconstruction monitoring requirement for a particular pollutant at the discretion of the reviewing authority. See 40 CFR 51.166(i)(5) and 52.21(i)(5). SMCs are not minimum required elements of an approvable SIP under the CAA. This de minimis value is widely considered to be a useful component for implementing the PSD program, but is not absolutely necessary for the states to implement PSD programs. States can satisfy the statutory requirements for a PSD program by requiring each PSD applicant to submit air quality monitoring data for PM2.5 without using de minimis thresholds to exempt certain sources from such requirements. See 75 FR 64864. The SMC became effective under the federal PSD program on December 20, 2010. States with EPA-approved PSD programs that adopt the SMC for PM2.5, however, may use the SMC, once it is part of an approved SIP, to determine when it may be appropriate to exempt a particular major stationary source or major modification from the monitoring requirements under its state PSD program. Florida's March 15, 2012, SIP revision adopts the SMC provision into the Florida SIP.

Recently, the Sierra Club filed suit challenging EPA's authority to implement the PM2.5 SILs 14 as well as the SMC for PSD purposes as promulgated in the October 20, 2010, rule. Sierra Club v. EPA, Case No 10-1413, D.C. Circuit Court. Specifically regarding the SMC, the Sierra Club claims that the use of an SMC to exempt a source from submitting a year's worth of monitoring data is inconsistent with the CAA. EPA responded to Sierra Club's claims in a Brief dated April 6, 2012, which described the Agency's authority to develop and promulgate SMC.15 A copy of EPA's April 6, 2012, Brief can be found in the docket for today's rulemaking at www.regulations.gov using docket ID: EPA-R04-OAR-2012-0555.

14 As mentioned earlier, due to litigation by the Sierra Club, EPA is not proposing to take action on the SILs portion of Florida's March 15, 2012, SIP revision at this time but will take action once the court case regarding SILs implementation is resolved.

15 Additional information on this issue can also be found in an April 25, 2010, comment letter from EPA Region 6 to the Louisiana Department of Environmental Quality regarding the SILs-SMC litigation. A copy of this letter can be found in the docket for today's rulemaking at www.regulations.gov using docket ID: EPA-R04-OAR-2012-0555.

IV. What is EPA's analysis of Florida's SIP revision?

Florida currently has a SIP-approved NSR program for new and modified stationary sources. FDEP's PSD program definitions and preconstruction permitting rules are found at rule 62-210.200, F.A.C, and rules 62-212.300 through 62-212.400, F.A.C., respectively. These rules apply to major stationary sources or modifications constructed in areas designated attainment or unclassifiable/attainment as required under part C of title I of the CAA with respect to the NAAQS. FDEP's March 15, 2012, changes to Chapters 62-210, F.A.C., and 62-212, F.A.C., were submitted to adopt into Florida's NSR permitting program PSD provisions promulgated in the NSR PM2.5 Rule and the PM2.5 PSD Increment-SILs-SMC rule. These changes to Florida's regulations became state effective on March 28, 2012. EPA is proposing to approve these changes into the Florida SIP to be consistent with federal NSR regulations (at 40 CFR 51.166 and 52.21) and the CAA.

A. NSR PM2.5 Implementation Rule

Florida's March 15, 2012, SIP revision establishes that the State's existing NSR permitting program requirements for PSD apply to the PM2.5 NAAQS and its precursors. Specifically, the SIP revision adopts the following NSR PM2.5 Rule PSD provisions into the Florida SIP: (1) The requirement for NSR permits to address directly emitted PM2.5 and precursor pollutants; (2) significant emission rates for direct PM2.5 and precursor pollutants (SO2 and NOX) and (3) the requirement that condensable PM be addressed in enforceable PM10 and PM2.5 emission limits included in PSD permits. The March 15, 2012 changes revised the definition for “significant emissions rates” at 62-21.200(282) to establish SO2 and NOx as PM2.5 precursors and adopt significant emission rates for direct PM2.5 and PM2.5 precursors for major modifications at existing sources (as amended at 40 CFR 51.166(b)(23)(i)) and established the requirement that condensable PM10 and PM2.5 emissions be accounted for in PSD applicability determinations and in establishing emissions limitations for PM at 62-212.300(1)(f) as amended at 40 CFR 51.166(b)(49). In addition, Florida's March 15, 2012, SIP revision added definitions for “condensable PM10” at 62-210.200(94), “condensable PM2.5” at 62-210-200(95) and “condensable PM” at 62-210.200(93), for clarification purposes. EPA is proposing to approve the aforementioned changes into the Florida SIP.

B. PM2.5 PSD Increment-SILs-SMC Rule

Florida's March 15, 2012, SIP revision adopts, into the Florida SIP, the following PSD provisions promulgated in the PM2.5 PSD Increment-SILs-SMC Rule: (1) PSD increments for PM2.5 annual and 24-hour NAAQS pursuant to section 166(a) of the CAA (at Chapter 62-210, F.A.C.); (2) SILs to be used as a screening tool to evaluate the impact a proposed major source or modification may have on the NAAQS or PSD increment (at Chapters 62-210, F.A.C., and 62-212, F.A.C.); and (3) SMC, also used as a screening tool, to determine the level of data gathering required of a major source in support of its PSD permit application for PM2.5 emissions.

Specifically, the SIP revision makes the following changes to Florida's PSD regulations to adopt PSD increment provisions established in the PM2.5 PSD Increment-SILs-SMC rule at Chapters 62-210 and 62-212, F.A.C.: (1) Revises the definition for “maximum allowable increase” to incorporate by reference (IBR) the PM2.5 PSD increments numerical values (established in the tables at 40 CFR 52.21(c) at 62-204.800, F.A.C.16); (2) amends definitions for “major source baseline date” and “minor source baseline date” to establish relevant dates for PM2.5 increment consumption and establish trigger dates (as established at 40 CFR 51.166(b)(14)(i)(c) and 51.166(b)(14)(ii)(c) respectively) and; (3) revises the definition for “baseline area” as promulgated at 40 CFR 51.166(b)(15)(i) and (ii) and adds definitions for “baseline concentration.” The March 15, 2012, SIP submission also adds a definitions for “Class I and II Areas” at Chapter 62-210.200(77) and (78), F.A.C. respectively. The definition for Class I Areas IBR 40 CFR part 81, Subpart D (the federal Class I Area list) at rule 61 62-204.800, F.A.C.). In today's action, EPA is proposing to approve Florida's March 15, 2012, SIP revision to address PM2.5 PSD increments.

16 Florida IBR federal rules at rule 62-204.800 F.A.C.

Regarding the SILs and SMC established in the October 20, 2010, PM2.5 PSD Increment-SILs-SMC Rule, the Sierra Club has challenged EPA's authority to implement SILs and SMC. In a brief filed in the D.C. Circuit on April 6, 2012, EPA described the Agency's authority under the CAA to promulgate and implement the SMC and SILs de minimis thresholds. Florida's SIP revision includes the SMC of 4 µg/m3 for PM2.5 NAAQS (at rule 62-212.400(3)(e)1, F.A.C.) that was added to the existing monitoring exemption at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). With respect to the SMC, EPA is proposing to approve these promulgated thresholds into the Florida SIP as EPA believes the use of the SMC is a valid exercise of the Agency's de minimis authority. Furthermore, Florida's March 15, 2012, SIP revision is consistent with EPA's current promulgated provisions in the October 20, 2010, rule. However, EPA notes that future court action may require subsequent rule revisions and SIP revisions from Florida.

The March 15, 2012, SIP revision submitted by Florida to adopt the new PSD requirements for PM2.5 pursuant to the PM2.5 PSD Increment-SILs-SMC Rule also includes the new regulatory text at 40 CFR 51.166(k)(2) and 52.21(k)(2), concerning the implementation of SILs for PM2.5. EPA stated in the preamble to the October 20, 2010 final rule that we do not consider the SILs to be a mandatory SIP element, but regard them as discretionary on the part of regulating authority for use in the PSD permitting process. Nevertheless, the PM2.5 SILs are currently the subject of litigation before the U.S. Court of Appeals. (Sierra Club v. EPA, Case No 10-1413 D.C. Circuit). In response to that litigation, EPA has requested that the Court remand and vacate the regulatory text in the EPA's PSD regulations at paragraph (k)(2) so that EPA can make necessary rulemaking revisions to that text. In light of EPA's request for remand and vacatur and our acknowledgement of the need to revise the regulatory text presently contained at paragraph (k)(2) of sections 51.166 and 52.21, EPA does not believe that it is appropriate at this time to approve that portion of the State's implementation plan revision that contains or is related to the affected regulatory text in the State's PSD regulations, at rule, 62-212.400(5), F.A.C and 62-210.200(283)(c), F.A.C.. Instead, EPA is taking no action at this time with regard to these specific provisions contained in the SIP revision. EPA will take action on the SILs portion of Florida's March 15, 2012, SIP revision in a separate rulemaking once the issue regarding the court case has been resolved.

The aforementioned amendments to Florida's SIP provide the framework for implementation of PM2.5 NAAQS in the states NSR permitting. Based on review and consideration of Florida's March 15, 2012, SIP revision, EPA has made the preliminary determination to approve the aforementioned PSD permitting provisions promulgated in the NSR PM2.5 Rule and PM2.5 PSD Increment-SILs-SMC Rule into the Florida SIP to implement the NSR program for the PM2.5 NAAQS.

V. Proposed Action

EPA is proposing to approve portions of Florida March 15, 2012, SIP revision adopting federal regulations amended in the May 16, 2008, NSR PM2.5 Rule and the October 20, 2010, PM2.5 PSD Increment-SILs-SMC rule into the Florida SIP with the exception of the SILs provisions. EPA has made the preliminary determination that this SIP revision, with regard to aforementioned proposed actions, is approvable because it is consistent with section 110 of the CAA and EPA regulations regarding NSR permitting.

VI. Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

EPA proposes to approve revisions to the Maryland State Implementation Plan (SIP) submitted by the Maryland Department of the Environment (MDE) on June 30, 2009. The revisions amend the visible emissions requirements of the Maryland SIP's regulation for the Control of Iron and Steel Production Installations as they apply to sintering plants. The sintering plant located at the Sparrows Point steelmaking facility (Sparrows Point) is the only sintering plant located in the State of Maryland, and therefore the only source affected by these SIP revisions. The revisions exempt the sintering plant from the visible emissions section of the regulation for the Control of Iron and Steel Production Installations contingent upon the source's two wet scrubbers, used to control emissions of particulate matter, continuously monitoring compliance with specified pressure drop and flow rate operating parameters. EPA is approving these revisions because they provide for a continuous means of determining compliance with the applicable SIP emission rate for particulate matter from the sintering plant located at Sparrows Point, and because that emission rate has been demonstrated to protect and maintain the National Ambient Air Quality Standards (NAAQS) for PM10 (particulate matter consisting of particles with an aerodynamic diameter less than or equal to 10 micrometers). EPA is proposing to approve these revisions in accordance with the requirements of the Clean Air Act (CAA). In the Final Rules section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

DATES:

Comments must be received in writing by August 27, 2012.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0272 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0272. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

EPA proposes to approve the State Implementation Plan (SIP) revision submitted by the submitted by the Commonwealth of Virginia. This revision removes four internal State administrative requirements from the Virginia SIP regulations for the control of motor vehicle emissions in the Northern Virginia Area. In the Final Rules section of this Federal Register, EPA is approving Virginia's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

DATES:

Comments must be received in writing by August 27, 2012.

ADDRESSES:

Submit your comments, identified by Docket ID Number EPA-R03-OAR-2012-0443 by one of the following methods:

D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2012-0443. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Harold A. Frankford, (215) 814-2108, or by email at frankford.harold@epa.gov.

SUPPLEMENTARY INFORMATION:

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

The United States Agency for International Development (USAID) is issuing public notice of its intent to establish a new system of records maintained in accordance with the Privacy Act of 1974 (5 U.S.C. 552a), as amended, entitled “USAID-33 Phoenix Financial Management System”. This action is necessary to meet the requirements of the Privacy Act to publish in the Federal Register notice of the existence and character of record systems maintained by the agency (5 U.S.C. 522a(e)(4)).

DATES:

Public comments must be received on or before September 3, 2012. Unless comments are received that would require a revision; this update to the system of records will become effective on September 10, 2012.

The Phoenix Financial Management System is being established as an Agency-wide system of record as it is required to collect, maintain or store personal data requiring protection under the Privacy Act. It is USAID's core financial management system and accounting system of record. Phoenix enables USAID to effectively and efficiently analyze, allocate and report on US foreign assistance funds. Phoenix includes modules such as General Ledger, Accounts Payable, Accounts Receivables, and Budget Execution, which are required to perform necessary accounting operations. Phoenix falls under strict regulatory audit requirements from the Office of Management and Budget, as well as the General Accountability Office.

This system contains records of current employees, contractors, personal service contractors (PSCs), consultants, partners, and those receiving foreign assistance funds.

Categories of records covered by the system:

This system contains USAID organizational information. Phoenix imports the following data elements from NFC Payroll files for Personnel Services Contractors (PSC) and direct hires: name, social security number, details of payroll transactions and work phone numbers. Phoenix imports the following data elements from the E2 Travel system for each traveler: name, date of travel (month/year) and destination.

(1) The payroll information is used to associate PSC payroll-related payments with their contracts and track direct hire payroll payments in the system in order to produce 1099 files. If this information is not imported form NFC to Phoenix, then USAID cannot comply with IRS regulations to maintain and produce 1099s.

(2) The travel information is used to associate E2 travel records with Phoenix accounting information regarding travel authorization and funding.

Disclosure to consumer reporting agencies:

These records are not disclosed to consumer reporting agencies.

Routine Use of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:

USAID may disclose relevant system records in accordance with any current and future blanket routine uses established for its record systems. These may be for internal communications or with external partners.

Policies and practices for storing, retrieving, accessing, retaining, and disposing of records in the system:Storage:

All records are accessed only by authorized personnel who have a need to access the records in the performance of their official duties. Information is retrieved by name or by a system specific ID (Vendor ID, Traveller ID, etc.). SSN is not employed as a key, but only present for tax reporting purposes.

Safeguards:

Administrative, managerial and technical controls are in place. Phoenix has a current C&A in place. Phoenix is secured through access control provided to only those individuals with a need to know within the Agency. Further, access to the PII is limited to the staff within the CMP and CAR divisions. Phoenix is maintained by the US government, not contractors.

Retention and disposal:

Records are retained using the appropriate, approved National Archives Records Administration -Schedules for the type of record being maintained.

System manager(s) and address:

David Ostermeyer, United States Agency for International Development, U.S. Department of State Annex 44, 455, 301 4th Street SW., Washington, DC 20547.

Notification procedures:

Individuals requesting notification of the existence of records on them must send the request in writing to the Chief Privacy Officer, USAID, 2733 Crystal Drive, 11th Floor, Arlington, Va. 22202. The request must include the requestor's full name, his/her current address and a return address for transmitting the information. The request shall be signed by either notarized signature or by signature under penalty of perjury and reasonably specify the record contents being sought.

Record access procedures:

Individuals wishing to request access to a record must submit the request in writing according to the “Notification Procedures” above. An individual wishing to request access to records in person must provide identity documents, such as government-issued photo identification, sufficient to satisfy the custodian of the records that the requester is entitled to access.

Contesting record procedures:

An individual requesting amendment of a record maintained on himself or herself must identify the information to be changed and the corrective action sought. Requests must follow the “Notification Procedures” above.

Record source categories:

The records contained in this system will be provided by and updated by the individual who is the subject of the record.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), OIRA_Submission@OMB.EOP.GOV or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8681.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Rural Business—Cooperative Service

Title: Agriculture Innovation Centers.

OMB Control Number: 0570-0045.

Summary of Collection: The Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171, signed May 13, 2002) authorized the Secretary of the U.S. Department of Agriculture (USDA) to award grant funds for agriculture innovation centers, a demonstration program under which agricultural producers are to be provided with technical and business development assistance enabling them to establish businesses producing and marketing value-added products. The Food, Conservation, and Energy Act of 2008 reauthorized the program through 2012. This program is administered by Cooperative Programs within USDA's Rural Development.

Need and Use of the Information: Information is collected by Rural Development State and Area office staff, as delegated, from applicants and grantees. Cooperative Programs uses the collected information to confirm that the applicant and use of funds meet the eligibility requirements for the program as well as to assess the quality of the proposed project. Grantees are required to submit financial status and performance reports to confirm that progress is being made toward achieving the stated goals of the project. A final report is submitted at the completion of the grant agreement. Centers may be non-profit corporations, for-profit corporations, institutions of higher learning, and consortia of the aforementioned entities.

Description of Respondents: Not-for-profit Institutions; Business or other for-profit.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), OIRA_Submission@OMB.EOP.GOV or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

Animal and Plant Health Inspection Service

Title: Restricted and Controlled Importation of Animal and Poultry Products (Milk and Eggs) Into the United States.

OMB Control Number: 0579—New.

Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and enhancing the Animal and Plant Health Inspection Service (APHIS) ability to compete in the world market of animals and animal products trade. In connection with this mission, APHIS enforces regulations regarding both the importation of controlled materials and the prevention of foreign animal disease incursions into the United States. The regulations under which APHIS conducts these disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Parts 94, 95, and 122 of the Code of Federal Regulations.

Need and Use of the Information: APHIS will collect information to ensure that imported items do not present a disease risk to the livestock and poultry populations of the United States. The information collected will provide APHIS with critical information concerning the origin and history of the items destined for importation into the United States. Without the information, the United States would be at increase risk of an exotic disease incursion.

Description of Respondents: Business or other for-profit; Not for-profit institutions; Foreign Government.

Number of Respondents: 227.

Frequency of Responses: Reporting; On occasion; Quarterly.

Total Burden Hours: 204,316.

Animal and Plant Health Inspection Service

Title: Prohibited and Restricted Importation of Fresh (Frozen and Chilled) Pork or Pork Products into the United States.

OMB Control Number: 0579—New.

Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and enhancing the Animal and Plant Health Inspection Service (APHIS) ability to compete in the world market of animals and animal products trade. In connection with this mission, APHIS enforces regulations regarding both the importation of controlled materials and the prevention of foreign animal disease incursions into the United States. The regulations under which APHIS conducts these disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Parts 94, 95, and 122 of the Code of Federal Regulations.

Need and Use of the Information: APHIS will collect information to ensure that imported items do not present a disease risk to the livestock and poultry populations of the United States. The information collected will provide APHIS with critical information concerning the origin and history of the items destined for importation into the United States.

Without the information, the United States would be at increase risk of an exotic disease incursion.

Description of Respondents: Business or other for-profit; Foreign Government.

Title: Prohibited and Restricted Importation of Hams into the United States.

OMB Control Number: 0579—New.

Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and enhancing the Animal and Plant Health Inspection Service (APHIS) ability to compete in the world market of animals and animal products trade. In connection with this mission, APHIS enforces regulations regarding both the importation of controlled materials, such as ham and ham products, and the prevention of foreign animal disease incursions into the United States. The regulations under which APHIS conducts these disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Part 94 of the Code of Federal Regulations.

Need and Use of the Information: APHIS will collect information to ensure that imported items do not present a disease risk to the livestock and poultry populations of the United States. The information collected will provide APHIS with critical information concerning the origin and history of the items destined for importation into the United States.

Without the information, the United States would be at increase risk of an exotic disease incursion.

Description of Respondents: Business or other for-profit; Foreign Government.

Number of Respondents: 93.

Frequency of Responses: Reporting; On occasion; Quarterly.

Total Burden Hours: 49,220.

Animal and Plant Health Inspection Service

Title: Restricted and Controlled Importation of Animal and Poultry Products and Byproducts, Into the United States.

OMB Control Number: 0579-0015.

Summary of Collection: The Animal Health Protection Act (AHPA) of 2002 is the primary Federal law governing the protection of animal health. The law gives the Secretary of Agriculture broad authority to detect, control, or eradicate pests or diseases of livestock or poultry. Disease prevention is the most effective method for maintaining a healthy animal population and enhancing the Animal and Plant Health Inspection Service (APHIS) ability to compete in the world market of animals and animal products trade. In connection with this mission, APHIS enforces regulations regarding both the importation of controlled materials and the prevention of foreign animal disease incursions into the United States. The regulations under which APHIS conducts these disease prevention activities are contained in Title 9, Chapter 1, Subchapter D, Parts 94, 95, and 122 of the Code of Federal Regulations.

Need and Use of the Information: APHIS will collect information to ensure that imported items do not present a disease risk to the livestock and poultry populations of the United States. The information collected will provide APHIS with critical information concerning the origin and history of the items destined for importation into the United States. Without the information, the United States would be at increase risk of an exotic disease incursion.

Description of Respondents: Business or other for-profit; Not for-profit institutions; Foreign Government.

The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Pamela_Beverly_OIRA_Submission@OMB.EOP.GOV or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling (202) 720-8958.

An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

National Institute of Food and Agriculture

Title: Expanded Food and Nutrition Education Program (EFNEP).

OMB Control Number: 0524-0044.

Summary of Collection: The Department of Agriculture's National Institute of Food and Agriculture (NIFA), Expanded Food and Nutrition Education Program (EFNEP) is a unique program that began in 1969 and is designed to reach limited resource audiences, especially youth and families with young children. EFNEP operates in all 50 states, the District of Columbia and in American Samoa, Guam, Micronesia, Northern Marianas, Puerto Rico, and the Virgin Islands. Extension professionals train and supervise paraprofessionals and volunteers who teach food and nutrition information and skills to limited resources families and youth.

Need and Use of the Information: NIFA will collect information using Nutrition Education Evaluation and Reporting System (NEERS), which is an integrated database system that stores information on: (1) Adult program participants, their family structure and dietary practices; (2) youth group participants; and (3) staff, NEERS consists of separate software sub-systems for the County and the State levels (State also refers to U.S. Territories). Without the information it would be extremely difficult for the national office to compare, assess, and analyze the effectiveness and the impact of EFNEP without the annual collection of data.

In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of a currently approved collection.

The purpose of the Uniform Grant Application Package for Discretionary Grant Programs is to provide a standardized format for the development of all Requests for Applications for discretionary grant programs released by the Food and Nutrition Service (FNS) Agency and to allow for a more expeditious OMB clearance process.

DATES:

Written comments must be received on or before September 25, 2012.

ADDRESSES:

Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Lael Lubing, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 732, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Lael Lubing at 703-605-0363 or via email to lael.lubing@fns.usda.gov. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

FOR FURTHER INFORMATION CONTACT:

Requests for additional information or copies of this information collection should be directed to Lael Lubing at 703-305-2048.

Abstract: FNS has a number of discretionary grant programs. (Consistent with the definition in 7 CFR part 3016, the term “grant” as used in this notice includes cooperative agreements.) The authorities for these grants vary and will be cited as part of each grant application solicitation. The purpose of the revision to the currently approved collection for the Uniform Grant Application Package for Discretionary Grant Programs is to continue the authority for the established uniform grant application package and to update the number of collection burden hours. The uniform collection package is useable for all of FNS' discretionary grant programs to collect information from grant applicants that are needed to evaluate and rank applicants and protect the integrity of the grantee selection process. All FNS discretionary grant programs will be eligible, but not required, to use the uniform grant application package. Before soliciting applications for a discretionary grant program, FNS will decide whether the uniform grant application package will meet the needs of that grant program. If FNS decides to use the uniform grant application package, FNS will note in the grant solicitation that applicants must use the uniform grant application package and that the information collection has already been approved by OMB. If FNS decides not to use the uniform grant application package or determines that it needs grant applicants to provide additional information not contained in the uniform package, then FNS will publish a notice soliciting comments on its proposal to collect different or additional information before making the grant solicitation.

The uniform grant application package will include general information and instructions; a checklist; a requirement for the program narrative statement describing how the grant objectives will be reached; the Standard Form (SF) 424 series that request basic information, including budget information and a disclosure of lobbying activities certification (SF-LLL). In addition, grantees are required to submit the SF-425. The SF-425 is approved by OMB; however, reporting and recordkeeping burden hours associated with this form must be accounted for in each agency's information request packages.

The proposed information collection covered by this notice is related to the requirements for the program narrative statement. The requirements for the program narrative statement are based on the requirements for program narrative statements described in section 1c(5) of the OMB Circular A-102 and will apply to all types of grantees—State and Local governments, Indian Tribal organizations, Non-Profit organizations, Institutions of Higher Education, and For-Profit organizations. The information collection burden related to the SF-424 series, and the lobbying certification forms have been separately approved by OMB.

State & Local Government91619168073,280Indian Tribal Governments29129802,320SUB-TOTAL STATE, LOCAL & INDIAN TRIBAL GOVERNMENTS945N/A945N/A75,600Non-profit Organizations50015008040,000Universities1011080800SUB-TOTAL NON-PROFIT ORGANIZATIONS510N/A510N/A40,800Produce Groups50150804,000SUB-TOTAL BUSINESS OR OTHER FOR-PROFIT50N/A50N/A4,000SUB-TOTAL1,5051,505120,400A.12-1a Reporting Burden for Post-Award Estimates of Burden HoursActionNumber of

respondents

Number of

annual

response

Total annual responseHours per

response

Total annual burdenQuarterly Progress and Financial Reports21248482.251,908.00Annual Final Report21212122.25477.00SUB-TOTAL STATE, LOCAL & TRIBAL GOVERNEMENTS212N/A1,060N/A2,385.00Quarterly Progress and Financial Reports7843122.25702.00Annual Final Report781782.25175.50SUB-TOTAL NON-PROFIT ORGANIZATIONS78N/A390N/A877.50Quarterly Progress and Financial Reports64242.2554.00Annual Final Report6162.2513.50SUB-TOTAL BUSINESS OR OTHER FOR-PROFIT6N/A30N/A67.50Recordkeeper ResponsesN/AN/A296N/AN/APost-Award Total Reporting Annualized Burden Estimates296N/A1,776N/A3,330.00A.12-1b—Recordkeeping Burden for Post-Award Estimates of Burden HoursActionNumber of

On January 3, 2012, the Department of Commerce (”the Department”) initiated the third sunset reviews of the antidumping duty (“AD”) orders on certain corrosion-resistant carbon steel flat products (“CORE”) from Germany and the Republic of Korea (“Korea”) pursuant to section 751(c) of the Tariff Act of 1930, as amended (“the Act”). On April 20, 2012, the Department revised its original adequacy determination and determined to conduct full sunset reviews of the AD orders on CORE from Germany and Korea as provided for in section 751(c)(5)(A) of the Act and in 19 CFR 351.218(e)(2), and extended the deadlines for the preliminary and final results.1 As a result of its analysis, the Department preliminarily finds that revocation of these AD orders would be likely to lead to continuation or recurrence of dumping at the margins indicated in the “Preliminary Results of Review” section of this notice.

On January 3, 2012, the Department initiated the third sunset review of the AD orders on CORE from Germany and Korea pursuant to section 751(c) of the Act.2 The Department received notices of intent to participate from the following domestic interested parties: United States Steel Corporation (“U.S. Steel”); ArcelorMittal USA LLC (“AMUSA”); and Nucor Corporation (“Nucor”), within the deadline specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act as U.S. producers of the subject merchandise. The Department received complete substantive responses from the domestic interested parties within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i).

The Department did not receive a substantive response from any respondent in either of the sunset reviews of the AD orders on CORE from Germany and Korea. As a result, pursuant to 19 CFR 351.218(e)(1)(ii)(C)(2), the Department determined to conduct expedited reviews of these orders. However, on April 20, 2012, the Department revised its original adequacy determination and determined to conduct full sunset reviews.3 The conversion to full sunset reviews and extension of the deadlines for the preliminary results were done to provide interested parties with an opportunity to comment concerning the implementation of the Final Modification for Reviews.4

The Department provided interested parties with an opportunity to comment on how the implementation of the Final Modification for Reviews applies to the sunset reviews of the AD orders on CORE from Germany and Korea. U.S. Steel, Nucor, and AMUSA submitted comments on June 8, 2012. ThyssenKrupp Steel Europe AG, a German producer and exporter, submitted comments on June 8, 2012. U.S. Steel, Nucor, and AMUSA submitted rebuttal comments on June 15, 2012.

Scope of the Orders

The products subject to the orders include flat-rolled carbon steel products, of rectangular shape, either clad, plated, or coated with corrosion-resistant metals such as zinc, aluminum, or zinc-, aluminum-, nickel- or iron-based alloys, whether or not corrugated or painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating, in coils (whether or not in successively superimposed layers) and of a width of 0.5 inch or greater, or in straight lengths which, if of a thickness less than 4.75 mm, are of a width of 0.5 inch or greater and which measures at least 10 times the thickness, or if of a thickness of 4.75 mm or more, are of a width which exceeds 150 mm and measures at least twice the thickness, as currently classifiable in the Harmonized Tariff Schedule of the United States (“HTSUS”) under item numbers: 7210.30.0030, 7210.30.0060, 7210.41.0000, 7210.49.0030, 7210.49.0090, 7210.61.0000, 7210.69.0000, 7210.70.6030, 7210.70.6060, 7210.70.6090, 7210.90.1000, 7210.90.6000, 7210.90.9000, 7212.20.0000, 7212.30.1030, 7212.30.1090, 7212.30.3000, 7212.30.5000, 7212.40.1000, 7212.40.5000, 7212.50.0000, 7212.60.0000, 7215.90.1000, 7215.90.3000, 7215.90.5000, 7217.20.1500, 7217.30.1530, 7217.30.1560, 7217.90.1000, 7217.90.5030, 7217.90.5060, and 7217.90.5090.

Included in the orders are flat-rolled products of nonrectangular cross-section where such cross-section is achieved subsequent to the rolling process (i.e., products which have been “worked after rolling”)—for example, products which have been beveled or rounded at the edges.

Excluded from the scope of the orders are flat-rolled steel products either plated or coated with tin, lead, chromium, chromium oxides, both tin and lead (“terne plate”), or both chromium and chromium oxides (“tin-free steel”), whether or not painted, varnished or coated with plastics or other nonmetallic substances in addition to the metallic coating. Also excluded from the scope of the orders are clad products in straight lengths of 0.1875 inch or more in composite thickness and of a width which exceeds 150 mm and measures at least twice the thickness. Also excluded from the scope of the orders are certain clad stainless flat-rolled products, which are three-layered corrosion-resistant carbon steel flat-rolled products less than 4.75 mm in composite thickness that consist of a carbon steel flat-rolled product clad on both sides with stainless steel in a 20%-60%-20% ratio.

Further, the Department made three changed circumstances determination with respect to the order on Germany. The Department partially revoked the order with respect to deep-drawing carbon steel strip, roll-clad on both sides with aluminum (AlSi) foils in accordance with St3 LG as to EN 10139/10140.5 The Department also partially revoked the order with respect to certain wear plate products.6 In addition, the Department partially revoked the order with respect to the following products: Certain corrosion-resistant carbon steel from Germany, meeting the following description: electrolytically zinc coated flat steel products, with a coating mass between 35 and 72 grams per meter squared on each side; with a thickness range of 0.67 mm or more but not more than 2.95 mm and width 817 mm or more but not over 1830 mm; having the following chemical composition (percent by weight): carbon not over 0.08, silicon not over 0.25, manganese not over 0.9, phosphorous not over 0.025, sulfur not over 0.012, chromium not over 0.1, titanium not over 0.005 and niobium not over 0.05; with a minimum yield strength of 310 Mpa and a minimum tensile strength of 390 Mpa; additionally coated on one or both sides with an organic coating containing not less than 30 percent and not more than 60 percent zinc and free of hexavalent chrome.7

All issues raised in these reviews are addressed in the Issues and Decision Memorandum (“Decision Memorandum”) from Susan Kuhbach, Director, Antidumping and Countervailing Duty Operations Office 1, to Paul Piquado, Assistant Secretary for Import Administration, dated concurrent with this notice of preliminary results, which is hereby adopted by this notice. The issues discussed in the Decision Memorandum include the likelihood of continuation or recurrence of dumping and the magnitude of the margin likely to prevail if the orders were revoked. In our analysis, the Department addresses the concerns raised by interested parties with regard to the Final Modification for Reviews. Parties can find a complete discussion of all issues raised in these sunset reviews and the corresponding recommendations in this public memorandum, which is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available in the Central Records Unit (“CRU”), Room 7046 of the main Department of Commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/frn, under the heading “July 2012.” The signed version and the electronic versions are identical in content.

Preliminary Results of Review

The Department preliminarily determines that the magnitude of the margin likely to prevail were the antidumping duty orders on CORE from Germany and Korea to be revoked is at least 9.35 percent for Thyssen Stahl AG and all other German producers and exporters of CORE and at least 12.85 percent for all Korean producers and exporters of CORE, other than POSCO.8

8 The order was revoked with respect to Pohang Iron & Steel Co., Ltd. and Pohang Coated Steel Co., Ltd. (collectively, “POSCO”), who was the only respondent examined in the original antidumping investigation. See Certain Corrosion-Resistant Carbon Steel Flat Products From the Republic of Korea: Notice of Final Results of the 2009-2010 Administrative Review and Revocation, in Part, 77 FR 14501 (March 12, 2012).

Interested parties may submit case briefs no later than 50 days after the date of publication of the preliminary results of these full sunset reviews, in accordance with 19 CFR 351.309(c)(1)(i). Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than the five days after the time limit for filing case briefs in accordance with 19 CFR 351.309(d).

A hearing, if requested, will be held two days after the date the rebuttal briefs are due. The Department will issue a notice of final results of these full sunset reviews, which will include the results of its analysis of issues raised in any such comments, no later than November 28, 2012.9

9See CORE Extension Notice.

The Department is issuing and publishing the results and notice in accordance with sections 751(c), 752, and 777(i)(1) of the Act.

The New England Fishery Management Council is in the process of preparing an Essential Fish Habitat Omnibus Amendment to the fishery management plans for Northeast multispecies, Atlantic sea scallop, monkfish, Atlantic herring, skates, Atlantic salmon, and Atlantic deep-sea red crab. The Council is seeking comments about removing the range of alternatives pertaining to deep-sea corals from this action and developing them as a separate omnibus amendment.

DATES:

Written comments must be received on or before 5 p.m. e.s.t., August 27, 2012.

The New England Fishery Management Council's (Council) Essential Fish Habitat (EFH) Omnibus Amendment 2 (OA2) currently includes: (1) Review and update of EFH designations, (2) review and update of Habitat Area of Particular Concern (HAPC) designations, (3) other EFH requirements of fishery management plans including prey species information and non-fishing impacts, (4) alternatives to minimize, to the extent practicable, the adverse effects of Council-managed fisheries on EFH, and (5) alternatives to minimize fishing effects on deep-sea corals developed under the authority granted in the fishery management plan (FMP) discretionary provisions (section 303(b)) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Alternatives developed under item 4 will include options related to the groundfish closed areas as well as options to designate spatially-overlapping dedicated habitat research areas. The Council added review of the groundfish closed areas to OA2 in April 2011 (76 FR 35408). Approval of a range of adverse effects minimization, groundfish area, and research area alternatives (item 3) has not yet occurred.

The purpose of this notification is to alert and seek comment from the public about Council's consideration of splitting the deep-sea coral discretionary provision alternatives from OA2, and including them in a separate omnibus amendment.

The Magnuson-Stevens Act section 303(b) discretionary authority gives Councils broad latitude to develop measures to minimize the impacts of fishing on deep-sea corals. Because most of the deep-sea corals occur beyond the limits of EFH, the Council is considering conservation measures under these discretionary provisions of the Magnuson-Stevens Act. This authority was added when the Magnuson-Stevens Act was reauthorized in 2007. The Council first directed its Habitat Plan Development Team to evaluate information related to deep-sea corals and develop alternatives for their protection in February 2008. The coral alternatives were folded into OA2 as a matter of convenience, because it was an ongoing habitat-related action. A range of coral alternatives were approved by the Council for further development and analysis in April 2012.

The following considerations were discussed by the Council and its Habitat Committee during recent meetings, and may be helpful to members of the public who wish to submit comments.

The range of coral alternatives developed by NEFMC includes broad zones beginning at 300, 400, or 500 m on the continental slope and extending to the Exclusive Economic Zone boundary, and discrete zones encompassing submarine canyons on the continental slope off Georges Bank and Southern New England, four seamounts within the EEZ, and two locations in the Gulf of Maine. The range of possible management measures for these zones includes mobile bottom-tending gear restrictions or bottom-tending gear restrictions, with exceptions for deep-sea red crab traps, special access programs, and exploratory fishing programs. The Council anticipates allowing these management measures to be revised via framework action. More detailed information can be found on the Council's Habitat Web page (http://www.nefmc.org/habitat/index.html).

The fishing restriction alternatives as currently drafted are gear-based, not fishery or FMP based, and would apply to vessels operating in fisheries managed by both the New England and Mid-Atlantic Fishery Management Councils. The Mid-Atlantic Council initiated their own action related to deep-sea corals at their April 2012 meeting. Assuming the New England Council implements coral-related measures north of the inter-council boundary, and Mid-Atlantic Council does so south of the boundary, consistency in management approaches will be critically important, because fisheries managed by both Councils operate near or within coral habitats and are prosecuted both sides of the boundary line.

To facilitate inter-council coordination, the Councils are in the process of drafting a memorandum of understanding between the New England, Mid-Atlantic, and South Atlantic Councils. This document will identify areas of consensus and common strategy related to conservation of corals and mitigation of the negative impacts of fishery/coral interactions. At their June meeting, the New England Council reiterated that this is a priority issue for the short term. If additional development time is necessary to ensure that management actions related to deep sea corals are consistent throughout the region, these delays could impact completion of OA2 if the coral measures remain in the same action. Conversely, there have been delays associated with groundfish-related aspects of alternatives development for OA2 (item 3 above), and it might be possible to move the coral alternatives forward first if those delays continue. Overall, placing the two sets of actions on separate tracks could allow increased flexibility as the Council re-evaluates its priorities over time.

Separate actions for corals and EFH could be clearer and easier to understand than a single combined action, since each one would be focused towards a narrower set of goals and objectives. However, there would be overlaps in terms of some of the content of the two separate amendments, especially background information for the slope and seamount areas (at a minimum, the EFH action will designate EFH along the slope and on the seamounts, so these areas will need to be discussed in that amendment even if the coral alternatives are removed). If the actions are being developed and implemented in parallel, which seems most likely, it might be difficult to incorporate this material by reference.

Also, there is a linkage between the coral discretionary provision alternatives and the other alternatives in the EFH amendment because portions of the submarine canyons and seamounts harboring deep-sea corals and other associated ecosystem components were recommended as HAPCs during Phase 1 of OA2 development (June 2007). Because HAPCs are a subset of designated EFH, HAPC designations would remain as part of the EFH Omnibus Amendment, and would not be split off into a separate coral omnibus amendment, even though some of the HAPCs were developed with corals in mind. Each of the HAPC alternatives (and EFH alternatives) developed during Phase 1 are pending implementation and subject to change until final action is taken by the Council on Omnibus EFH Amendment 2. Thus, there remains an opportunity to rectify any inconsistencies between the coral zones developed under the discretionary authority and the HAPCs developed under the EFH authority, bearing in mind that objectives for the two sets of areas may be different. A comparison of the two sets of areas will be undertaken whether they are developed via one action or two separate actions.

It is possible that some of the impacts analyses of both the coral and adverse effects/groundfish would be streamlined if coral alternatives and adverse effects/groundfish alternatives continue to be developed in a single amendment, because restrictions in one area could increase fishing activity in other areas. However, as there are few spatial overlaps between the coral zone alternatives and the adverse effects minimization areas as currently drafted, and different fisheries are associated with both sets of areas, this may not be a major issue. This could be a more important consideration for the two coral areas proposed in the Gulf of Maine near Mt Desert Rock and in western Jordan Basin. With this possible exception, splitting could simplify the analysis required because the combined effect of the two sets of alternatives would be limited to the cumulative effects analyses in each of the amendment documents.

The Council is requesting comments on: splitting the deep-sea coral discretionary provision alternatives out of the EFH action and into a separate amendment, the range of deep-sea coral alternatives themselves, and coordination and consultation with the other Atlantic coast Councils, particularly the Mid-Atlantic Council.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notification of fee percentage.

SUMMARY:

NMFS publishes a notification of a zero (0) percent fee for cost recovery under the Bering Sea and Aleutian Islands Crab Rationalization Program. This action is intended to provide holders of crab allocations with the fee percentage for the 2012/2013 crab fishing year.

DATES:

Fee liability payments made by the Crab Rationalization Program Registered Crab Receiver permit holders, if necessary, are due to NMFS on or before July 31, 2013.

FOR FURTHER INFORMATION CONTACT:

Karen Palmigiano, 907-586-7240.

SUPPLEMENTARY INFORMATION:

Background

NMFS Alaska Region administers the Bering Sea and Aleutian Islands Crab Rationalization Program (Program) in the North Pacific. Fishing under the Program began on August 15, 2005. Regulations implementing the Program are set forth at 50 CFR part 680.

The Program is a limited access system authorized by section 313(j) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Program includes a cost recovery provision to collect fees to recover the actual costs directly related to the management, data collection, and enforcement of the Program. NMFS developed the cost recovery provision to conform to statutory requirements and to partially reimburse the agency for the unique added costs of management, data collection, and enforcement of the Program. Section 313(j) of the Magnuson-Stevens Act provided supplementary authority to section 304(d)(2)(A) and additional detail for cost recovery provisions specific to the Program. The cost recovery provision allows collection of 133 percent of the actual management, data collection, and enforcement costs up to 3 percent of the ex-vessel value of crab harvested under the Program. Additionally, section 313(j) requires the harvesting and processing sectors to each pay half the cost recovery fees. Catcher/processor quota share holders are required to pay the full fee percentage for crab processed at sea.

A crab allocation holder generally incurs a cost recovery fee liability for every pound of crab landed. The crab allocations include Individual Fishing Quota, Crew Individual Fishing Quota, Individual Processing Quota, Community Development Quota, and the Adak community allocation. The Registered Crab Receiver (RCR) permit holder must collect the fee liability from the crab allocation holder who is landing crab. Additionally, the RCR permit holder must collect his or her own fee liability for all crab delivered to the RCR. The RCR permit holder is responsible for submitting this payment to NMFS on or before the due date of July 31, in the year following the crab fishing year in which landings of crab were made.

The dollar amount of the fee due is determined by multiplying the fee percentage (not to exceed 3 percent) by the ex-vessel value of crab debited from the allocation. Specific details on the Program's cost recovery provision may be found in the implementing regulations set forth at § 680.44.

Fee Percentage

Each year, NMFS calculates and publishes in the Federal Register the fee percentage according to the factors and methodology described in Federal regulations at § 680.44(c)(2). The formula for determining the fee percentage is the “direct program costs” divided by “value of the fishery,” where “direct program costs” are the direct program costs for the Program for the previous fiscal year, and “value of the fishery” is the ex-vessel value of the catch subject to the crab cost recovery fee liability for the current year. Fee collections for any given year may be less than, or greater than, the actual costs and fishery value for that year, because, by regulation, the fee percentage is established in the first quarter of a crab fishery year based on the fishery value and the costs of the prior year.

The fee percentage has declined over time because of a variety of factors, including the increasing value of the fishery due to increased total allowable catch limits for various crab species such as Bristol Bay red king crab (Paralithodes camtshaticus) and Bering Sea snow crab (Chionoecetes opilio), increased ex-vessel price per pound of crab relative to previous years, and decreased management costs relative to previous years primarily due to decreased staff and contract costs.

Using the fee percentage formula described above, the estimated percentage of costs to value for the 2010/2011 and 2011/2012 crab fishing years was 2.67 percent and 1.23 percent, respectively. These fee levels have resulted in a fee collection greater than the actual management, data collection, and enforcement costs for the 2010/2011 and 2011/2012 crab fishing years. Therefore, fee revenues remain to cover projected actual costs for 2012/2013. As a result, NMFS has determined that the fee percentage will be zero (0) percent for the 2012/2013 fishing year.

Monday, August 13, 20129 a.m. until 5 p.m.—The Visioning and Strategic Planning Working Group will meet.Tuesday, August 14, 20129 a.m. until 11 a.m.—The Ecosystem and Ocean Planning Committee will meet.11 a.m. until noon—The Executive Committee will meet.1 p.m.—The Council will convene.1 p.m. until 1:15 p.m.—Swearing in of new and reappointed Council members and the election of Council officers will be held.1:15 p.m. until 3 p.m.—Special Management Zone (SMZ) consideration for Delaware reefs will be held.3 p.m. until 5 p.m.—A Scup Allocation Report will be held.5 p.m. until 6 p.m.—There will be a Public Listening Session.Wednesday, August 15, 20129 a.m. until 3 p.m.—The Council will finalize Summer Flounder, Scup, and Black Sea Bass.3 p.m. until 4 p.m.—The Council will discuss Amendment 17 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP).4 p.m. until 5 p.m.—The Council will finalize bluefish management measures for 2013 in conjunction with the Atlantic States Marine Fisheries Board.Thursday, August 16, 20128 a.m. until 9:30 a.m.—Research Set-Aside (RSA) proposals and 2013 priorities will be discussed.9:30 a.m. until 10 a.m.—National Standard 1 guidelines will be discussed.10 a.m. until 10:30 a.m.—Amendment 3 to Spiny Dogfish will be discussed.10:30 a.m. until 11 a.m.—There will be a NEFSC Strategic planning Presentation by Dr. Russell Brown.11 a.m. until 1 p.m.—The Council will hold its regular Business Session to approve the April and June 2012 minutes, the New England and South Atlantic Council reports, receive Organizational Reports, Executive Director's Report, Science Report, Committee Reports, and conduct any continuing and/or new business.

Agenda items by day for the Council's Committees and the Council itself are:

On Monday, August 13, 2012—The Visioning and Strategic Planning Working Group (facilitated by Adam R. Saslow, Senior Facilitator at RESOLVE) will discuss the desired outcomes and timelines from the Strategic Planning Working Group, review themes and recommendations from stakeholder input (“Visioning”) report, identify core values and develop a draft Vision Statement, discuss alignment of the Council's core values and Vision with the requirements of the Magnuson-Stevens Act (MSA), and analyze and document internal strengths and weaknesses as well as external opportunities and obstacles to the Council's efforts.

On Tuesday, August 14—The Ecosystem and Ocean Planning Committee will discuss initiation of a Deep Sea Corals Amendment and a Memorandum of Understanding with the New England and South Atlantic Councils. The Executive Committee will provide a status update on Ecosystem-Based Fishery Management (EBFM). The Council will swear in new and reappointed Council members and elect Council Officers. The Council will review a report of the SMZ Monitoring Team and develop recommendations. There will be a presentation on the project to evaluate scup allocation. During the Public Listening Session there will be a presentation on the MAFMC Strategic Planning—Objective, Process, and Possible Outcomes and an introduction to the new Regional Administrator, John Bullard, of the Northeast Regional Office of NMFS.

On Wednesday, August 15—The Council in conjunction with the ASMFC's Summer Flounder, Scup, and Black Sea Bass Board will review the Scientific and Statistical Committee (SSC) and the associated Monitoring Committee's specification recommendations for 2013-15 and adopt 2013-15 commercial and recreational harvest levels and commercial management measures for summer flounder, scup, and black sea bass. The Council will review and approve Amendment 17 Public Hearing Document to the Summer Flounder, Scup, and Black Sea Bass FMP. The Council in conjunction with the ASMFC's Bluefish Board will review the SSC and the Bluefish Monitoring Committees' specification recommendations regarding the 2013-15 harvest levels and associated management measures and adopt recommendations for harvest levels and associated management measures for 2013-15.

On Thursday, August 16—The Council will review and adopt proposed changes to the RSA Program and finalize the RSA and Information Research and Information Priorities List for 2013 request for proposals. The Council will review/revise the NMFS proposal regarding National Standard 1 Guidelines. The Council will review and approve the public hearing document of Amendment 3 to Spiny Dogfish. The Council will receive a NEFSC Strategic Planning presentation by Dr. Russell Brown. The Council will hold its regular Business Session to approve the April and June 2012 minutes, receive Liaison Reports, receive Organizational Reports to include discussion regarding the development of sub-Annual Catch Limits (ACL) for windowpane flounder, the Executive Director's Report, the Science Report, Committee Reports, and conduct any continuing and/or new business.

Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during these meetings. Action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

Special Accommodations

This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders (302) 526-5251 at least 5 days prior to the meeting date.

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Notice; issuance of permit.

SUMMARY:

Notice is hereby given that a permit has been issued to John Calambokidis, Cascadia Research Collective, Waterstreet Building, 2181/2 West Fourth Avenue, Olympia, WA 89501 to conduct research on marine mammals.

ADDRESSES:

The permit and related documents are available for review upon written request or by appointment in the following offices: See SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT:

Carrie Hubard or Laura Morse, (301)427-8401.

SUPPLEMENTARY INFORMATION:

On April 2, 2012, notice was published in the Federal Register (77 FR 19645) that a request for a permit to conduct research on cetaceans and pinnipeds had been submitted by the above-named applicant. The requested permit has been issued under the authority of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.), the regulations governing the taking and importing of marine mammals (50 CFR part 216), the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222-226), and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq.).

Permit No. 16111 authorizes Mr. Calambokidis to study cetaceans and pinnipeds in the eastern North Pacific, from Central America to Alaska. The research is a continuation of long-term studies designed to examine marine mammal abundance, distribution, population structure, habitat use, social structure, movement patterns, diving behavior, and diet. Focal species are blue (Balaenoptera musculus), fin (B. physalus), humpback (Megaptera novaeangliae), eastern gray (Eschrichtius robustus), sperm (Physeter macrocephalus), and beaked (Mesoplodon spp.) whales. An additional 15 cetacean species and five pinniped species may be studied, including the endangered sei whale (B. borealis), endangered Southern Resident stock of killer whales (Orcinus orca), and the threatened eastern stock of Steller sea lions (Eumetopias jubatus). Vessel research includes photo-identification, behavioral focal follows, underwater observations and filming, hydroacoustic prey determination, passive acoustic recording, breath sampling, biopsy sampling, collection of sloughed skin, and attachment of suction cup and dart tags. Aerial surveys may be conducted to study abundance and distribution, and to track tagged animals. Ground surveys may be conducted for population counts and scat collection to study harbor seals (Phoca vitulina) and other pinnipeds at haul-out areas in Puget Sound and throughout Washington. Permit No. 16111 expires on July 15, 2017.

An environmental assessment (EA) was prepared analyzing the effects of the permitted activities on the human environment in compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). Based on the analyses in the EA, NMFS determined that issuance of the permit would not significantly impact the quality of the human environment and that preparation of an environmental impact statement was not required. That determination is documented in a Finding of No Significant Impact, signed on July 12, 2012.

As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.

On 5/11/2012 (77 FR 27737-27738) and 6/1/2012 (77 FR 32591-32592), the Committee for Purchase From People Who Are Blind or Severely Disabled published notices of proposed additions to the Procurement List.

After consideration of the material presented to it concerning capability of qualified nonprofit agencies to provide the products and services and impact of the additions on the current or most recent contractors, the Committee has determined that the products and services listed below are suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organizations that will furnish the products and services to the Government.

2. The action will result in authorizing small entities to furnish the products and services to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the products and services proposed for addition to the Procurement List.

End of Certification

Accordingly, the following products and services are added to the Procurement List:

Coverage: C-List for an additional 30% of the requirement of the Department of Defense, bringing the requirement on the Procurement List to 100%, as aggregated by the Defense Logistics Agency Troop Support, Philadelphia, PA.

This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed action.

Addition

If the Committee approves the proposed addition, the entities of the Federal Government identified in this notice will be required to provide the service listed below from a nonprofit agency employing persons who are blind or have other severe disabilities.

Regulatory Flexibility Act Certification

I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

1. If approved, the action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.

2. If approved, the action will result in authorizing a small entity to provide the service to the Government.

3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.

Comments on this certification are invited. Commenters should identify the statement(s) underlying the certification on which they are providing additional information.

End of Certification

The following service is proposed for addition to the Procurement List for production by the nonprofit agency listed:

The Corporation for National and Community Service (CNCS) has submitted a modification to a currently approved public information collection request (ICR) entitled Senior Corps Grant Application for review and approval in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, (44 U.S.C. Chapter 35). Copies of this ICR, with applicable supporting documentation, may be obtained by calling the Corporation for National and Community Service, Wanda Carney, at (202) 606-6934 or email to wcarney@cns.gov. Individuals who use a telecommunications device for the deaf (TTY-TDD) may call 1-800-833-3722 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday.

ADDRESSES:

Comments may be submitted, identified by the title of the information collection activity, to the Office of Information and Regulatory Affairs, Attn: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service, by any of the following two methods within 30 days from the date of publication in the Federal Register:

(1) By fax to: (202) 395-6974, Attention: Ms. Sharon Mar, OMB Desk Officer for the Corporation for National and Community Service; and

(2) Electronically by email to: smar@omb.eop.gov.

SUPPLEMENTARY INFORMATION:

The OMB is particularly interested in comments which:

• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of CNCS, including whether the information will have practical utility;

• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Propose ways to enhance the quality, utility, and clarity of the information to be collected; and

• Propose ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submissions of responses.

Comments

The 60-day Notice soliciting comments was published on March 20, 2012 on page 16213. No public comments were received.

Description: CNCS is seeking approval of the Senior Corps Grant Application, as revised. The Grant Application is used by RSVP, Foster Grandparent and Senior Companion Program grantees, and for potential applicants. The Senior Corps Grant Application is currently approved through June 30, 2014.

Type of Review: Revision of a currently approved collection.

Agency: Corporation for National and Community Service.

Title: Senior Corps Grant Application.

OMB Number: 3045-0035.

Agency Number: None.

Affected Public: Current and potential grantees of the RSVP, Foster Grandparent, and Senior Companion programs.

Total Respondents: 1,518.

Frequency: Annual.

Average Time per Response: 5 hours.

Estimated Total Burden Hours: 7,590.

Total Burden Cost (capital/startup): None.

Total Burden Cost (operating/maintenance): None.

Dated: July 20, 2012.Erwin J. Tan,Director, Senior Corps.[FR Doc. 2012-18347 Filed 7-26-12; 8:45 am]BILLING CODE 6050-$$-PDEPARTMENT OF DEFENSEDepartment of the Army, U.S. Army Corps of EngineersNotice of Availability of the Final Environmental Impact Statement for the Proposed Point Thomson Project, North Slope Borough, AKAGENCY:

Corps of Engineers, Department of the Army, Department of Defense.

ACTION:

Notice of Availability—Final EIS.

SUMMARY:

In accordance with the National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq.) and Council on Environmental Quality regulations (40 CFR parts 1500-1508) the Corps of Engineers, Alaska District, advises that the Final EIS for the Point Thomson Project, proposed by Exxon Mobil Corporation and PTE Pipeline, is now available for public review. The Final EIS evaluated reasonable alternative designs and potential impacts to the environment. The proposed project includes the construction of structures in navigable waters of the United States (U.S.) and the discharge of dredged and/or fill materials into waters of the U.S., including wetlands. The proposed work requires authorization from the Corps of Engineers under Section 10 of the Rivers and Harbors Act (RHA) of 1899 and Section 404 of the Clean Water Act (CWA). The Final EIS will be used to evaluate the Applicant's Department of the Army (DA) permit application and compliance with NEPA.

DATES:

The 30-day review period begins on July 27, 2012 and ends on August 27, 2012. The Record of Decision on the proposed action will be issued after August 27, 2012. The Final EIS is not open for public comment.

1. Authorization: Section 404 of the Clean Water Act (33 U.S.C. 1344) and Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403); Department of Defense, Corps of Engineers, Department of the Army, 33 CFR Parts 320 through 330, Regulatory Program of the Corps of Engineers; Final rule; Appendix B of 33 CFR Part 325.

2. Background Information: The Alaska District, Corps of Engineers received the Applicant's complete permit application on November 1, 2011. The Applicant's project purpose is to initiate commercial liquid hydrocarbon production (natural gas condensate) and delineate and evaluate hydrocarbon resources in the Point Thomson area. Two natural gas production wells have been authorized, drilled, and tested at an existing gravel pad at Point Thomson, AK. Other previously authorized gravel pads and exploration wells exist in the general area.

3. Location: The project is located on Alaska's Arctic Coastal Plain, Beaufort seacoast, approximately 60 miles east of Prudhoe Bay. Most of the Thomson Sand Reservoir is located under the Beaufort Sea. The proposed facilities would be located primarily onshore, on State of Alaska lands, leased to the Applicant or their working interest partners of the oil and gas industry. Kaktovik, AK is located approximately 60 miles east. The farthest eastward development resulting from this proposed project would be approximately 2 miles west of the Arctic National Wildlife Refuge boundary.

4. Proposed Project: The proposed project includes industrial development involving gravel fill placement in tundra wetlands and waters, construction of marine structures, and dredging. The proposed project would construct a large gravel mine; a mile long gravel airstrip; 3 hydrocarbon production and/or processing gravel pads; several miles of in-field gravel roads; similar length infield above-ground pipelines; a marine bulkhead, service pier, and mooring dolphins; navigational dredging; and other industrial infrastructure. Processed liquid hydrocarbons would be transported through a new 23-mile long elevated pipeline to existing facilities to the west and further connections to the Trans Alaska Pipeline System. The proposed project would include construction of temporary and permanent camps (lodging); offices, warehouses, and shops; electric power generation and distribution facilities; fuel, water, and chemical storage; a water and wastewater treatment facility; a grind and inject drilling waste facility; a solid waste facility; and communications facilities. The proposed project would include directional drilling a minimum of five wells from three coastal gravel pads: Central, East, and West. The Central Pad would be the largest and the primary location for construction and operations, processing fluids, locating a gas injection well for recycling natural gas, and a wastewater disposal well. The East and West Pads would include wells to delineate and evaluate the hydrocarbon reservoir for additional oil and gas resources and facilitate production.

5. Alternatives: Four alternatives were developed and evaluated in the Final EIS that would meet the Applicant's stated purpose and need. The No Action Alternative is used for comparison of the environmental effects of the action alternatives and involves long term monitoring and maintenance of the existing wells and gravel pads. Three Action Alternatives were developed and considered. Two action alternatives would minimize impacts to coastal resources by locating infrastructure components inland from the coastline and reducing coastal access. These 2 alternatives consider alternative transportation routes, such as ice roads and an all-season gravel road in-lieu of barge access. A third alternative was developed to reduce impacts to waters and wetlands by minimizing the total gravel fill footprint. A complete description of the alternatives development, screening process, and the alternatives carried forward for detailed study, is disclosed in Chapter 2 of the Final EIS.

6. Scoping Process: A Notice of Intent to prepare a Draft EIS for the Proposed Point Thomson Project was published in the Federal Register on December 4, 2009. The Corps of Engineers conducted public scoping, Alaska Native Tribal consultations, and resource agency meetings in AK prior to preparing the Draft EIS. Over 300 issue-specific comments were identified. Results from the scoping process were summarized a Public Scoping Document and are addressed in the Draft EIS.

7. Draft EIS Review: The Draft EIS comment period began November 18, 2011 with the publication of the Notice of Availability in the Federal Register. It was originally scheduled to end on January 3, 2012 but was extended until January 18, 2012 after requests for an extension were received. Open house and public comment meetings were held between December 5-15, 2011 in Anchorage, Fairbanks, Kaktovik, Nuiqsut, and Barrow, AK. The Corps of Engineers received over 240 comment submissions during the comment period. Over 660 individual comments were recorded and responded to. Based on comments received, errors in the Draft EIS were corrected and sections edited for clarity. The Final EIS is the result of these changes and additions. Overall impact findings did not change between the Draft and Final EIS, although some descriptions did change.

8. Availability of the Final EIS: The Final EIS is electronically available for viewing and printing at: www.pointthomsonprojecteis.com.

A printed Executive Summary, which includes 2 Compact Disks containing the entire Final EIS, may be obtained by contacting Mr. Baij at the above contact information.

In accordance with 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), announcement is made of the forthcoming meeting.

Name of Committee: Inland Waterways Users Board (Board).

Date: August 29, 2012.

Location: The Sheraton St. Louis City Center Hotel and Suites, 400 South 14th Street, St. Louis, MO 63103 at (314) 231-5007.

Time: Registration will begin at 8:30 a.m. and the meeting is scheduled to adjourn at approximately 1:00 p.m.

Agenda: The agenda will include the status of funding for inland navigation projects and studies and the status of the Inland Waterways Trust Fund, the funding status for Fiscal Year (FY) 2012 and the FY 2013 budget, status of the Olmsted Locks and Dam Project, and the Board will consider its project investment recommendations for the next year.

The U. S. Department of Energy (DOE) announces the availability of the Draft Surplus Plutonium Disposition Supplemental Environmental Impact Statement (SPD Supplemental EIS; DOE/EIS-0283-S2) for public comment. DOE also is announcing the dates, times and locations for public hearings to receive comments on the Draft SPD Supplemental EIS. The Draft SPD Supplemental EIS analyzes the potential environmental impacts of alternatives for disposition of 13.1 metric tons (14.4 tons) of surplus plutonium for which DOE has not made a disposition decision, including 7.1 metric tons (7.8 tons) of plutonium from pits that were declared excess to national defense needs. It also updates previous DOE NEPA analyses on plutonium disposition to consider additional options for pit disassembly and conversion, which entails processing plutonium metal components to produce an oxide form of plutonium suitable for disposition, and the use of mixed oxide (MOX) fuel fabricated from surplus plutonium in domestic commercial nuclear power reactors to generate electricity, including five reactors at two specific Tennessee Valley Authority (TVA) reactor plants. DOE is not revisiting the decision to fabricate 34 metric tons (MT) (37.5 tons) of surplus plutonium into MOX fuel in the MOX Fuel Fabrication Facility (MFFF) (65 FR 1608, January 11, 2000 and 68 FR 20134, April 24, 2003), now under construction at DOE's Savannah River Site (SRS) in South Carolina, and to irradiate the MOX fuel in commercial nuclear reactors used to generate electricity.

TVA is a cooperating agency on this SPD Supplemental EIS. TVA is considering the use of MOX fuel, produced as part of DOE's Surplus Plutonium Disposition Program, in its nuclear power reactors.

DATES:

DOE invites Federal agencies, state and local governments, Native American tribes, industry, other interested organizations, and members of the public to comment on the Draft SPD Supplemental EIS during a 60-day public comment period which starts with the publication of the Environmental Protection Agency's Notice of Availability in the Federal Register and ends on September 25, 2012. Comments received after this date will be considered to the extent practicable. DOE will hold public hearings on the Draft SPD Supplemental EIS; the dates, times and locations are listed under SUPPLEMENTARY INFORMATION.

ADDRESSES:

Please direct written comments on the Draft SPD Supplemental EIS to Ms. Sachiko McAlhany, SPD Supplemental EIS NEPA Document Manager, U.S. Department of Energy, P.O. Box 2324, Germantown, MD 20874-2324. Comments may also be submitted via email to spdsupplementaleis@saic.com or by toll-free fax to 877-865-0277. DOE will give equal weight to written, email, fax, telephone, and oral comments. Questions regarding the Supplemental EIS process and requests to be placed on the SPD Supplemental EIS mailing list should be directed to Ms. McAlhany by any of the means given above or by calling toll-free 877-344-0513.

For general information about the DOE NEPA process, please contact: Ms. Carol Borgstrom, Director, Office of NEPA Policy and Compliance (GC-54), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585, telephone (202) 586-4600, or leave a message at 1-800-472-2756. Additional information regarding DOE NEPA activities and access to many of DOE's NEPA documents are available on the Internet through the DOE NEPA Web site at http://www.energy.gov/nepa.

SUPPLEMENTARY INFORMATION:

DOE has prepared the Draft SPD Supplemental EIS in accordance with the National Environmental Policy Act (NEPA), the Council on Environmental Quality (CEQ) regulations that implement the procedural provisions of NEPA (40 CFR parts 1500-1508), and DOE regulations implementing NEPA (10 CFR part 1021).

Background: To reduce the threat of nuclear weapons proliferation, DOE is engaged in a program to disposition its surplus, weapons-usable plutonium in an environmentally sound manner, by converting such plutonium into proliferation-resistant forms that can never again be readily used in nuclear weapons. The U.S. inventory of surplus plutonium is in several forms. The largest quantity is plutonium metal in pits (a nuclear weapons component). The remainder is non-pit plutonium, which includes plutonium oxides and metal in a variety of forms and purities.

DOE has already decided to fabricate 34 metric tons (MT) (37.5 tons) of surplus plutonium into MOX fuel in the MFFF (65 FR 1608, January 11, 2000 and 68 FR 20134, April 24, 2003), now under construction at SRS, and to irradiate the MOX fuel in commercial nuclear reactors used to generate electricity, thereby rendering the plutonium into a spent fuel form not readily usable in nuclear weapons. DOE is not revisiting this decision in the SPD Supplemental EIS.

DOE announced its intent to prepare the SPD Supplemental EIS in a notice of intent (NOI) in 2007 to analyze the potential environmental impacts of alternatives to disposition about 13 MT of surplus plutonium for which it had not previously made disposition decisions (72 FR 14543; March 28, 2007). DOE amended the NOI in 2010 to refine its information on the quantity and types of surplus weapons-usable plutonium material, evaluate additional alternatives, and no longer consider one of the alternatives identified in the 2007 NOI (75 FR 41850; July 19, 2010). DOE also proposed to revisit its January 2000 decision to construct and operate a new Pit Disassembly and Conversion Facility (PDCF) in the F-Area at SRS (65 FR 1608; January 11, 2000) and analyze installation and operation of pit disassembly and conversion capabilities in an existing building in K-Area at SRS. DOE amended the NOI for a second time in 2012 (77 FR 1920, January 12, 2012) to add additional options for pit disassembly and conversion, which could involve the use of Technical Area 55 (TA-55) at the Los Alamos National Laboratory (LANL) in New Mexico, H-Canyon/HB-Line at SRS, as well as the K-Area and the MFFF, both at SRS. The 2007 NOI, the 2010 Amended NOI, and the 2012 second Amended NOI are available at http://www.energy.gov/nepa and at http://www.nnsa.energy.gov/nepa/spdsupplementaleis.

Alternatives

In addition to a No Action Alternative, in this SPD Supplemental EIS DOE evaluates four action alternatives to disposition 13.1 metric tons (14.4 tons) of surplus plutonium for which DOE has not made a disposition decision, including 7.1 metric tons (7.8 tons) of plutonium from pits that were declared excess to national defense needs. Within each action alternative, DOE also evaluates options for pit disassembly and conversion. The action alternatives are: (1) Immobilization to Defense Waste Processing Facility (DWPF) Alternative—glass can-in-canister immobilization for both surplus non-pit and disassembled and converted pit plutonium; (2) MOX Fuel Alternative—fabrication of the disassembled and converted pit plutonium and 4 of the 6 metric tons of the non-pit plutonium into MOX fuel at MFFF for use in domestic, commercial nuclear power reactors to generate electricity and disposition of the surplus plutonium that is not suitable for MFFF as transuranic (TRU) waste at the Waste Isolation Pilot Plant (WIPP), a deep geologic repository in southeastern New Mexico; (3) H-Canyon/HB-Line to DWPF Alternative—processing the surplus non-pit plutonium in the existing H Canyon/HB Line at SRS and subsequent disposal as high level nuclear waste (HLW) (i.e., vitrification in the existing DWPF) and fabrication of the pit plutonium into MOX fuel at MFFF; and (4) WIPP Alternative—disposal of the surplus non-pit plutonium as TRU waste at WIPP and fabrication of the pit plutonium into MOX fuel at MFFF.

Pit Disassembly and Conversion Options: DOE evaluated the range of reasonable pit disassembly and conversion options and combinations of options for analysis in the SPD Supplemental EIS: (1) A standalone PDCF at F-Area at SRS, (2) a pit disassembly and conversion project (PDC) at K-Area at SRS, (3) a pit disassembly and conversion capability in the Plutonium Facility (PF-4) in TA-55 at LANL and metal oxidation in MFFF, and (4) a pit disassembly and conversion capability in PF-4 at LANL with the potential for pit disassembly in K-Area, conversion to oxide in H-Canyon/HB-Line, and conversion to oxide in MFFF at SRS.

Use of MOX Fuel: This SPD Supplemental EIS also analyzes the potential environmental impacts of using MOX fuel fabricated from surplus plutonium in domestic commercial nuclear power reactors to generate electricity, including five reactors at two specific TVA reactor plants.

Preferred Alternative: The MOX Fuel Alternative is DOE's Preferred Alternative for surplus plutonium disposition. DOE's preferred option for pit disassembly and the conversion of surplus plutonium metal, regardless of its origins, to feed for MFFF is to use some combination of facilities at TA-55 at LANL and K Area, H Canyon/HB Line, and MFFF at SRS, rather than to construct a new standalone facility. This would likely require the installation of additional equipment and other modifications to some of these facilities. DOE's preferred alternative for disposition of surplus plutonium that is not suitable for MOX fuel fabrication is disposal at WIPP. The TVA does not have a preferred alternative at this time regarding whether to pursue irradiation of MOX fuel in TVA reactors and which reactors might be used for this purpose.

Invitation for Public Comment on the Draft SPD EIS: DOE will hold six public hearings on the Draft SPD Supplemental EIS at the following dates, times, and locations:

Individuals who would like to present comments orally at these hearings should register upon arrival at the hearing. Speaking time will be allotted by the hearing moderator to each individual wishing to speak to ensure that all who wish to speak have the opportunity to do so. DOE representatives will be available during an open house portion of these hearings to discuss the Draft SPD Supplemental EIS. Following a presentation by DOE, the public will have an opportunity to provide oral and written comments during the formal portion of the hearing. In preparing the final SPD Supplemental EIS, DOE will consider all comments presented at the hearing, comments received by fax or email and comments postmarked by the end of the comment period. DOE will consider comments received after that date to the extent practicable.

EPA will authorize its contractor Eastern Research Group, Incorporated (ERG) to access Confidential Business Information (CBI) which has been submitted to EPA under the authority of all sections of the Resource Conservation and Recovery Act (RCRA) of 1976, as amended. EPA has issued regulations that outline business confidentiality provisions for the Agency and require all EPA Offices that receive information designated by the submitter, as CBI to abide by these provisions.

DATES:

Access to confidential data submitted to EPA will occur no sooner than August 6, 2012.

Under EPA Contract No. EP-W-10-055, ERG, Incorporated will assist the Office of Resource Conservation and Recovery (ORCR), Resource Conservation and Sustainability Division (RCSD) in developing the Municipal Solid Waste Characterization Report to analyze the composition and amounts of the United State's Municipal Solid Waste (MSW), and how these materials are recycled, combusted, and landfilled. The methodology used in this report is a “top-down” materials flow approach to estimate the size of the waste stream data. This report may typically involve one or more of the following statutes: CAA, CWA, RCRA, TSCA, FIFRA, EPCRA and the SDWA. Some of the data collected voluntarily from industry, may be claimed by industry to contain trade secrets or CBI. In accordance with the provisions of 40 CFR part 2, subpart B, ORCR has established policies and procedures for handling information collected from industry, under the authority of RCRA, including RCRA Confidential Business Information Security Manuals.

ERG, Incorporated shall protect from unauthorized disclosure all information designated as confidential and shall abide by all RCRA CBI requirements, including procedures outlined in the RCRA CBI Security Manual.

The U.S. Environmental Protection Agency has issued regulations (40 CFR part 2, subpart B) that outline business confidentiality provisions for the Agency and require all EPA Offices that receive information designated by the submitter as CBI to abide by these provisions. ERG, Incorporated will be authorized to have access to RCRA CBI under the EPA “Contractor Requirements for the Control and Security of RCRA Confidential Business Information Security Manual.”

EPA is issuing this notice to inform all submitters of information under all sections of RCRA that ERG, Incorporated under the contract may have access to RCRA CBI. Access to RCRA CBI under this contract will take place at ERG's Chantilly, Virginia and Prairie View, Kansas offices, and when necessary, EPA Headquarters only. Contractor personnel at each location will be required to sign non-disclosure agreements and will be briefed on appropriate security procedures before they are permitted access to confidential information.

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2011-0266, which is available for public viewing online at http://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566-1752.

Use EPA's electronic docket and comment system at http://www.regulations.gov, to either submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

Title: NESHAP for Publicly Owned Treatment Works (Renewal).

ICR Numbers: EPA ICR Number 1891.06, OMB Control Number 2060-0428.

ICR Status: This ICR is scheduled to expire on August 31, 2012. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The affected entities are subject to the General Provisions of the NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the Provisions specified at 40 CFR part 63, subpart VVV.

Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports, at a minimum, are required semiannually.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 1 hour per response. “Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Estimated Total Annual Cost: $1,322, which includes $1,322 in labor costs, no capital/startup costs, and no operation and maintenance (O&M) costs.

Changes in the Estimates: There is no change in labor hours in this ICR compared to the previous ICR. This is due to two considerations: (1) The regulations have not changed over the past three years and are not anticipated to change over the next three years; and (2) the growth rate for the industry is very low, negative or non-existent, so there is no significant change in the overall burden.

There is an adjustment increase in costs to both the respondents and the Agency. This is not due to any program changes. The increase in cost reflects an adjustment in labor rates; this ICR uses updated labor rates to calculate burden costs for all labor categories.

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2011-0269, which is available for public viewing online at http://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566-1752.

Use EPA's electronic docket and comment system at http://www.regulations.gov to either submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

ICR Status: This ICR is scheduled to expire on August 31, 2012. Under OMB regulations, the Agency may continue to either conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The affected entities are subject to the General Provisions of the NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the Provisions specified at 40 CFR part 63, subpart CCCCC. Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results.

Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports, at a minimum, are required semiannually.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 229 hours per response. “Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Estimated Total Annual Cost: $2,649,250, which includes $2,479,750 in labor costs, no capital/startup costs, and $169,500 in operation and maintenance (O&M) costs.

Changes in the Estimates: There is an increase in costs for both the respondents and the Agency from the most recently approved ICR. The increase in burden cost is due to adjustments in labor rates. This ICR uses updated labor rates from the Bureau of Labor Statistics to calculate burden costs.

There is an increase of 33 hours in labor hours for the Agency related to a mathematical error in calculating the number of compliance reports per plant per year in the previous ICR. There is no change in the estimation methodology for labor hours to the respondents in this ICR compared to the previous ICR. This is due to two considerations: (1) The regulations have not changed over the past three years and are not anticipated to change over the next three years; and (2) the growth rate for respondents is very low, negative, or non-existent.

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR which is abstracted below describes the nature of the collection and the estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On May 9, 2011 (76 FR 26900), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to both EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under docket ID number EPA-HQ-OECA-2011-0267, which is available for public viewing either online at http://www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Enforcement and Compliance Docket is (202) 566-1752.

Use EPA's electronic docket and comment system at http://www.regulations.gov, to either submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at http://www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, Confidential Business Information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

ICR Status: This ICR is scheduled to expire on August 31, 2012. Under OMB regulations, the Agency may continue to either conduct or sponsor the collection of information while this submission is pending at OMB.

Abstract: The affected entities are subject to the General Provisions of the NESHAP at 40 CFR part 63, subpart A, and any changes, or additions to the Provisions specified at 40 CFR part 63, subpart LLLLL.

Owners or operators of the affected facilities must submit initial notification, performance tests, and periodic reports and results. Owners or operators are also required to maintain records of the occurrence and duration of any startup, shutdown, or malfunction in the operation of an affected facility, or any period during which the monitoring system is inoperative. Reports are required semiannually at a minimum.

Burden Statement: The annual public reporting and recordkeeping burden for this collection of information is estimated to average 225 hours per response. “Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements which have subsequently changed; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

Estimated Total Annual Cost: $1,318,753, which includes $1,293,301 in labor costs, no capital/startup costs, and $25,452 in operation and maintenance (O&M) costs.

Changes in the Estimates: There is an increase in costs for both the respondents and the Agency from the most recently approved ICR. The increase in burden cost is due to an increase in the number of new or modified sources and adjustments in labor rates. This ICR uses updated labor rates from the Bureau of Labor Statistics to calculate burden costs.

There is an increase of 1,480 hours in labor hours for the respondents, as well as an increase of 55 hours in labor hours for the Agency, due to the increase in the number of sources that are subject to the standard. There may also be some apparent differences that are attributable to rounding; this ICR presents more exact figures. There is no change in the estimation methodology in this ICR compared to the previous ICR.

There is also an increase of $45.00 in O&M costs to the respondents in this ICR as compared to the previous ICR. This is attributed to the photocopying and postage costs for an increased number of total sources subject to the standard.

In compliance with the Paperwork Reduction Act (PRA)(44 U.S.C. 3501 et seq.), this document announces that an Information Collection Request (ICR) has been forwarded to the Office of Management and Budget (OMB) for review and approval. This is a request to renew an existing approved collection. The ICR, which is abstracted below, describes the nature of the information collection and its estimated burden and cost.

EPA has submitted the following ICR to OMB for review and approval according to the procedures prescribed in 5 CFR 1320.12. On April 19, 2012 (77 FR 23478), EPA sought comments on this ICR pursuant to 5 CFR 1320.8(d). EPA received no comments. Any additional comments on this ICR should be submitted to EPA and OMB within 30 days of this notice.

EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OECA-2012-0157, which is available for online viewing at www.regulations.gov, or in person viewing at the Enforcement and Compliance Docket in the EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is 202-566-1744, and the telephone number for the Enforcement and Compliance Docket is 202-566-1752.

Use EPA's electronic docket and comment system at www.regulations.gov, to submit or view public comments, access the index listing of the contents of the docket, and to access those documents in the docket that are available electronically. Once in the system, select “docket search,” then key in the docket ID number identified above. Please note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing at www.regulations.gov as EPA receives them and without change, unless the comment contains copyrighted material, confidential business information (CBI), or other information whose public disclosure is restricted by statute. For further information about the electronic docket, go to www.regulations.gov.

Title: Enforcement Policy Regarding the Sale and Use of Aftermarket Catalytic Converters (Renewal).

ICR numbers: EPA ICR No. 1292.09, OMB Control No. 2060-0135.

ICR Status: This ICR is scheduled to expire on August 31, 2012. Under OMB regulations, the Agency may continue to conduct or sponsor the collection of information while this submission is pending at OMB. An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register when approved, are listed in 40 CFR part 9, are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers in certain EPA regulations is consolidated in 40 CFR part 9.

Abstract: The aftermarket catalytic converter policy (AMCC Policy) (51 FR 28114-28119, 28113 (Aug. 5, 1986); 52 FR. 42144 (Nov. 3, 1987)) allows aftermarket automobile catalytic converter (AMCC) manufacturers and reconditioners to compete with the automobile manufacturers for the AMCC replacement market. Without this policy, it would be illegal, under section 203 of the Clean Air Act, 42 U.S.C. 7522, to sell or install AMCCs that do not conform exactly to the automobile manufacturers' original equipment (OE) versions of these parts. The AMCC Policy makes it possible for automobile repair shops, which are often small businesses, to take on a significant share of the AMCC replacement market. In doing so, consumers are able to purchase AMCCs at a much lower price than they would pay for an OE catalytic converter. This helps to ensure that vehicles will not create excessive air pollution because motorists are more likely to replace damaged catalytic converters if they can be obtained at a cost that is significantly less than OE catalytic converters (cost savings resulting from the AMCC Policy are estimated to be about $716 million in 2007 dollars).

New AMCC manufacturers are required to report, on a one-time basis for each type or line of converter manufactured, the supplier identities, physical specifications of each AMCC line produced, and information regarding pre-production testing of the AMCCs that show they meet the AMCC Policy emission reduction standards for certain specified vehicle applications. The AMCC Policy requires new AMCC manufacturers to retain warranty and sales records.

Reconditioners (sellers of used catalytic converters) must report, on a one-time basis, the identity of the company, a description of the test bench used for testing used catalytic converters, and the intended vehicle application(s) for each catalytic converter type. All used catalytic converters must be tested individually to ensure they are still functional. The current AMCC Policy also requires reconditioners to retain sales and customer records.